With costs-shifting, technical competency, injunctive relief and a fast timetable to trial, the UPC has delivered a compelling option for the enforcement of tech patents in Europe.
Tech companies have always been more targeted in their patent enforcement activities in Europe, driven to Germany and the UK primarily because of their respective market sizes. This led to a concentration of litigation expertise in these jurisdictions. A key driver for this targeted approach was the cost of litigating piecemeal, particularly when compared to the US where a single action can lead to a judgement that has effect across all 50 states, an area comparable in size to Europe.
The UPC has gone a long way to rebalancing the playing field, allowing for one-stop enforcement of European patents across the 18 participating member states of the UPC, with more expected to join in the coming years. Not only this, but with its technically qualified judges, drawn from a pool covering a diverse set of technical areas, the UPC has a material advantage over the US and other jurisdictions in providing a judicial bench with technically qualified members. The fact that injunctive relief is available in the UPC (unlike usually in the US) is another major draw, with the prospect of a pan-UPC injunction (and potentially even broader) being a tantalising one.
Forum shopping is another exciting feature of the UPC, and tech litigants have not been afraid to explore this. Powell Gilbert has been involved in a number of tech cases in the UPC in a wide array of divisions, for example: for Ocado against AutoStore (Munich Local Division, Dusseldorf Local Division and Nordic-Baltic Regional Division), for AIM Sport against Supponor (Helsinki Local Division, and the Court of Appeal), for ASUSTeK against Ericsson (Lisbon Local Division) and for ParTec against NVIDIA (Munich Local Division).
Tech disputes attract interest from litigation funders, particularly those involving non-practising entities, and to date there has been considerable interest from funders in the UPC. We are aware of a handful of funded UPC disputes, but as confidence in the system grows, we expect to see more activity in this area, which will in turn lead to more tech disputes in the UPC. Of course, defendants wishing to take pro-active measures in the UPC are also interested in the options that the UPC offers.
A particular area of interest is semiconductors and data centres, with considerable investment in Europe in both sectors. This is likely to attract the attention of patentees and funders alike. Of course the closely related SEP/FRAND sector is very busy and Powell Gilbert is right in the middle of cases in that sector as well in the UPC.
