The consultation period for the draft proposed Rules of Procedure of the Unified Patents Court (“Rules”) closes on 1 October 2013.  Any life science business with European operations will, sooner or later, find itself before the Unified Patents Court once it becomes operational, either as a claimant or defendant.  The consequences of that litigation will be significant because the decision will affect the whole of Europe, rather than being confined to a single country as under the current litigation model.  The impact of the Rules will therefore be far-reaching, particularly for the life sciences industry, relying as it does on a relatively small number of patents to protect its key products. Now is your last chance to influence the system!

As explained here, in December 2012 the European Parliament voted in favour of the Unitary EU Patent.  The European Commission anticipated that the first Unitary EU Patent would be granted in 2014, although this time line now appears to be delayed.

The Rules set out a new and self-contained system for litigating all Unitary EU Patents in a new court.  In some cases, existing European Patents will also be litigated under the Rules in the new Unified Patents Court.  There are nearly 400 rules, covering everything from the seizure of allegedly infringing goods to the content and timing of pleadings.  Currently in its 15th draft and approaching its final form, a number of aspects of the Rules remain controversial.  Three issues of particular interest to life science companies are:

  • How bifurcation (i.e. the ability for the infringement claim to be heard separately from issues of validity and by different judges) will work in practice.  Notably, in what circumstances should bifurcation be permitted, and should injunctive relief be available while an invalidity challenge is pending?
  • A number of life science companies have expressed an intention to opt-out their European Patents to avoid the risk of core patents being revoked on a pan-European basis by a new, untested court.  The logistics and costs involved for a proprietor of an existing European Patent to opt out of the Unitary Patent litigation system remain to be clarified.
  • Whether a final injunction should be available as of right if the patent has been infringed, or whether, along the lines of the US Ebay v. MercExchange authority, the court can order that an injunction be replaced by damages in certain circumstances.

Details of how to respond to the Consultation can be found here.