15 November 2013Europe

CIPA Life Sciences: an update on the UPC

Kevin Mooney, chairman of the drafting committee for the Unified Patent Court (UPC)’s rules of procedure, explained the current state of play to the Chartered Institute of Patent Attorneys (CIPA) Life Sciences conference.

Mooney, a partner at Simmons & Simmons LLP, laid out the case for the UPC, pointing out that “a large part of the huge improvement in innovation in US in recent decades is because of the [Court of Appeals for the] Federal Circuit,” which was set up 27 years ago.

The case for a central patent court in Europe is clear, he said, but there is plenty of work still to do.

For example, it still needs to be decided “how to count” patent cases for the purposes of setting up a local division of the court (the requirement is 50 cases per year, but different jurisdictions count cases differently).

However, some of the most common concerns about the court may not be too problematic. Mooney expects “bifurcation to be rare,” and pointed out that “in bifurcation proceedings, the court has wide discretion to stay infringement proceedings pending a validity decision.”

Questions about whether there should be a fee to opt-out of the UPC, and what the fees should be for opting into the system having previously dropped out, are yet to be decided.

In a later roundtable discussion, Mooney said he thought it very unlikely that the court would be operational by 2015, which is the target date. Sir Robin Jacob, who is responsible for the group selecting judges for the court, said he expected the first judgment sometime in 2017.

“Will this court thrive?” Jacob asked.  “I think it could. They’ve given us a truly rotten structure … but nonetheless if the judges are sufficiently cohesive, we could make it work.”

The CIPA Life Sciences conference finishes today.

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