Part six of a six part series reviewing the patent litigation landscape in Europe - the Future.
N. Fox, “Brevets sans Frontières: How Much Litigation Will Actually Take Place in the Unified Patent Court?” (2018) 40 E.I.P.R., Issue 2
The table above summarizes the volume of patent litigation in the most active jurisdictions in Europe and some of the features which may impact the transfer of such work to the Unified Patent Court.
Clearly Germany dominates in terms of existing patent litigation. However, as the table shows, much of this litigation relates to enforcement of national rights over which the Unified Patent Court will have no jurisdiction. Given this, together with the inherent procedural advantages for patentees under Germany’s bifurcated patent procedure, it will be challenging for much of the existing German litigation to be transferred to the Unified Patent Court. The volume of cases outside of Germany is far lower. However, there also, the ability of the Unified Patent Court to attract work currently litigated elsewhere also faces challenges due to the relatively large proportion of national rights enforced in for example in France or the relatively high proportion of pharmaceutical patents which account for disputes elsewhere.
Assuming that half of the cases brought in Italy relate to European patents and 25% of those European patents are also involved in parallel litigation, the table above would suggest that each year between 460 and 490 patent cases involving European patents are brought in Germany, France, the UK, Italy and the Netherlands of which around 120 are involved in parallel litigation. At a minimum, each piece of parallel litigation will be litigated twice, so the above figures suggest that around 400 - 430 individual disputes involving European patents occur each year.
Although much of the parallel litigation in Europe and particularly parallel litigation involving smaller jurisdictions concerns the entry of generic drugs onto the market, a reasonable proportion relates to other fields. Given a central core represented by non-pharma parallel litigation, it is not difficult to see 40 or so cases a year being heard in the Unified Patent Court. Assuming 20 non-pharma parallel litigation cases exist each year, it would only take a few of the disputes in the national courts to transfer to the new court for such a target to be reached. Even allowing for a relatively low take-up of cases from Germany due to the inherent attractions for patentees of Germany’s bifurcated patent system, it would not require many other litigants to opt for the new court for reasons such as speed or costs from, say, France, Italy and the UK to reach 40 cases a year.
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