Europe's Unified Patent Court - Dec 2017

It was the middle of a night December 2017 and Andy awoke with a start. Sweating, and out of breath, the newly-minted startup C-level began to run through his mind the dream-slash-nightmare that woke him up: the real life conversation with his outside counsel about how a competitor in an important European market is suing for patent infringement (R. 15) through the Unified Patent Court (UPC). Trying to get a handle on the budget for defending, filing for a declaration of non-infringement. The fee structure includes a sliding scale based on the value of the action, topping out at 325,000 Euro.

After attending an enlightening event today on the very real December 2017 start of Europe's Unified Patent Court, Andy's scenario starts to take on a more tangible nature.

Well organized and sponsored by the international law firm White and Case, the discussion's panel included Kevin Mooney (Partner at Simmons and Simmons), who has been quite intimately involved in the project for a few...decades, went through some enlightening slides on the implications for US companies. A few items of interest: (i) there is a seven year period when a patent holder can decide to opt a patent out of the UPC and remain in the current system (defendants; however, can not opt out!), (ii) one's entire case must be prepared upfront, and (iii) arguments are written and not oral.

A key impression I came away with was this: in opposition to the role the U.S. Patent Trial and Appeal Board (PTAB) has played in devaluing patents, the UPC is seen as playing a part in building-up the value of a European Patent. There are implications for innovation, and investment in the competition between the two economies.

In the above scenario, Andy had an opportunity to assist the court in defining the value of the action. There are very well defined standards and methods developed by valuation community. Catapult has developed a set of Best Practices. These can be applied in Andy's context. I wonder if Andy will let the opposing side define the case value - likely to his detriment.

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