Research reveals growing business support for UPC
Research printed by Allen & Overy today demonstrates surprising support for Europe’s hotly debated Unified Patent Court, with almost three-quarters (74%) of individuals accountable for overseeing formulations for that new system planning on stay positive for his or her company – and just 15% expect it to possess negative effects on their behalf.
During the large question of whether or not to opt-in or opt from the new system during its seven-year transition period, nearly all respondents are undecided on the majority of their portfolio (68% typically), near to half (49%) of individuals surveyed stated they’d certainly opt-in a minimum of a few of their patents, while only 15% say they’d certainly opt out some.
Crucially, where companies have decided to opt-in, about 24% of the portfolio typically, they’re choosing to opt-in their best, or crown jewel, patents. This means that, where it matters most for business, they’ll opt-in.
As you Nederlander mind of IP strategy commented: “The financial aspects of merely one enforcement action outweighs the chance of Europe-wide invalidation.”
Because this statement and also the research suggest, regardless of the faltering reception the brand new system has gotten from companies around the world, its impact will probably be significant. The UPC will offer you patentees the opportunity to obtain broader remedies than individuals presently available within the U.S., having a bigger subscriber base impacted and injunctions which are simpler, cheaper and faster to acquire. Pricing is believed to become a minimum of five occasions less than within the U.S.
These advantages alone mean there’s apt to be a shift towards Europe’s UPC like a forum of preference to rival the U.S. for major patent disputes. This really is further based on nearly all respondents indicating they’ll file unitary patents, instead of classic European or national patents, underneath the new system.
Despite its potential effect on business, the report also highlights a truly alarming insufficient engagement among senior management around the UPC. Only 13% of individuals accountable for formulations for that new regime say their senior management are ‘fully engaged’ around the issue and understand the potential implications. One results of that could see companies lose exclusivity for his or her products, or even worse, get their business or products locked from the entire continent.
The size from the change happening implies that companies cannot get ready for it overnight. When they don’t engage strategically using the changes now, they might find their competitors dragging them into UPC or national patent litigation by themselves terms.
While the conclusion on how to handle a companies’ best patents appears obvious, how to handle a business’s less valuable patents is not. The 68%, typically, of the portfolio that business continue to be undecided on is basically comprised of their secondary patents. Insufficient clearness on costs is reported because the primary barrier to having the ability to decide based on two-thirds (67%) of respondents. Only if this really is clarified will companies have the ability to to experience a proper cost-benefit analysis on their own less valuable patents and whether it’s more economically advantageous to opt them in or out.
In addition to clearness on costs, there’s a pressing have to clarify a couple of places that interpretations from the rules differ. This risks departing companies with harmful gaps within the knowledge of the proper implications of the decisions. Particularly what goes on to patents that haven’t been formally opted from the UPC? These “opt-in orphans” could be litigated throughout the transitional period either in the nation’s courts or even the UPC. But it’s not obvious what goes on after proceedings happen to be completed and whether national court proceedings could effectively opt them from the UPC for that existence from the patent. A serious example will be a pharmaceutical generic company launching a revocation action against, for instance, the Latvian a part of a blockbuster patent. The organization could then withdraw the experience, getting effectively forced the patentee from the UPC system. It goes entirely resistant to the original intention to depart as numerous patents as you possibly can within the system. Another interpretation from the rules may also see the potential of concurrent litigation both in the UPC and national courts which can lead to contradictory decisions if, for instance, a nationwide court upholds a patent and also the UPC revokes it. This is actually the very kind of clash the UPC is made to avoid. Greater clearness is urgently needed of these “opt-in orphans”.
Commenting, Geert Glas, mind of Allen & Overy’s IP practice stated: “Companies can’t afford to hang about until they’ve a complete and final response to every question. There’s now evidence enough to allow them to decide if you should make use of the system. Time is drained prior to the UPC comes into action. Companies can’t manage to hesitate over among the bigger proper decisions their organisations will face for several years.Inches
Notes for Editors:
1. This survey includes 152 interviews finished with people who have responsibility for, or oversight of, their company’s European patent portfolio and decisions concerning the Unified Patent Court. Interviews were performed by YouGov on the internet and on the phone between 1 April 2014 and 16 May 2014. Respondents are attracted in the European headquarters of huge and medium-sized, patent-owning enterprises (predominantly within the United kingdom, Germany, France and also the Netherlands), which 81% get their global headquarters in Europe, while 19% are headquartered outdoors Europe. 88% of respondents are attracted in the existence sciences/pharmaceutical, telecoms, media and technology, and industrial/manufacturing sectors.
2. Allen & Overy is definitely an worldwide legal practice with roughly 5000 people, including some 525 partners, employed in 43 offices worldwide.
3. Within this pr release ‘Allen & Overy’ means Allen & Overy LLP and/or its affiliated projects.
4. The word ‘partner’ can be used to consult part of Allen & Overy LLP or perhaps an worker or consultant with equivalent standing and qualifications or perhaps an individual with equivalent status in a single of Allen & Overy LLP’s affiliated projects.