Review of Management Forum’s Conference on The Unitary Patent & Unified Court

by Julius Berg Kaasin

As a part of their 30th Anniversary Congress, Management Forum hosted a full day conference on the proposed European Unitary Patent and Unified Court. The unitary patent system aims at being a co-existing alternative to national and traditional European patents from 2015, offering unitary protection and litigation opportunities within the 25 participating EU member states. The conference was held 28 November 2013 at Millennium Gloucester Hotel in London, providing appropriate surroundings for both UK and other European professionals.

The unitary patent system is still incomplete and subject to intense debate. Therefore it constituted no easy starting point for speakers Ulrich Blumenröder and William Cook. Mr. Blumenröder is partner at German law firm Grünecker, Kinkeldey, Stockmair & Schwanhäusser in Munich, while Mr. Cook is a Solicitor (partner) at London based law firm Marks & Clerk Solicitors. They are both specialising within patent litigation.

The conference was divided in two halves. The first half consisted of a description of the unitary patent system. Although that information about the system is relatively accessible, Mr. Blumenroeder and Mr. Cook provided the audience with an in-depth description of the Unitary Patent Agreement and the Unified Patent Court. The review was particularly useful because of the comparison with the current nationally based European bundle patent, with speakers assessing the particularity of the unitary patent system’s non-national basis.

The second half after lunch was an analysing part with focus on future strategic options for protection of inventions in Europe. The speakers elaborated on the strategic implications of the new unitary patent system such as choice of tribunal and forum shopping. It seems likely that the new system’s co-existence with traditional patent systems will complicate further strategic options and challenges for businesses of various sizes when filing patent applications in Europe. For instance, there are initial concerns that businesses will stick to the current system, referred to by Sir Robin Jacob as the national “gap in protection” based European bundle patent issued by the EPO. This path seems to provide more flexibility and less risk compared to the unitary patent system’s “eggs in one basket” option with the possibility of unitary revocation. Moreover the uncertainty of costs within the new system, and with most applicants for European patents tending to validate on only a small amount of member states, has raised questions over whether the unitary patent system will be worthwhile.

With regulation of costs and risks still pending, such as the Rules of Procedure of the Unified Patent Court, the speakers moved to give their views on more practical issues such as the importance of choice of tribunal within the Unified Patent Court, linguistic challenges, the difficulties in terms of primary sources of law and the role of CJEU.

The conference was finished off with some case studies. Despite the significant uncertainty and the current lack of case law from the Unified Patent Court, these studies gave practical knowledge on the complexity of future strategic difficulties for patent advisors and their clients. By showing how choice of patent system can be affected by language, jurisdiction and industrial sector the speakers were able to illustrate some of the most probable strategic challenges mentioned above.

In addition to a carefully orchestrated presentation the hosts provided delegates with extensive materials and official texts. The service at the hotel was most accommodating and the speakers were open to answering questions in plenum, and to future dialogue.

As the speakers pointed out throughout the conference, it remains to be seen whether the unitary patent system will become correspondingly effective with its creators intentions. During the transitional period – and before getting substantial case law from the Unified Patent Court – we are likely to see businesses of all sizes taking a slightly cautious approach towards the new system, being reluctant to throw their valuable patent portfolios into the unitary patent bowl. If the new system should eventually fail, responsibility can surely not be assigned to neither the host nor the speakers of this conference. The only regret may be that delegates at the other conferences of the congress were unable to attend this very informative update of one of the most ambitious legal projects within the European Union.

Julius Berg Kaasin is a Queen Mary University of London LL.M. Candidate and works as a Queen Mary Intellectual Property Research Institute (QMIPRI) Student Research Fellow and Assistant Editor of Queen Mary Journal of Intellectual Property (QMJIP)

[1] Jacob, Sir R, Alexander QC, D, & Fisher, M (2013). Guidebook to Intellectual Property, 6th ed. Oxford : Hart Publishing, p. 32