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28 November 2023EuropeMarisa Woutersen

LSPN Spring: Life sciences cases taking centre stage at the UPC

UPC judge, EPO director and Regeneron counsel shed light on the court’s dynamics at London event | Life sciences sector emerging as a major player in the court | Quality of rulings and tight timeframes blamed for lack of appeals.

Life sciences cases comprise more than two-thirds of cases at the Unified Patent Court (UPC), a panel at LSPN Europe said last week.

During the session, 'The Unified Patent Court: the new era', UPC Judge Edgar Brinkman hailed the early months of the court as a “success”, suggesting that life sciences cases were behind the momentum.

Speaking at the London event, he described the UPC as having “really taken off”, which indicated an active and engaged user base.

“We see a lot {of these cases] going to Germany, especially the Munich local division, which could be due to the fact that Germany is known to be quite patentee friendly, because they don't look that much at the validity side,” said Brinkman.

“And it might also be that cases have taken off because the knockout that can happen in Germany now can be a knockout Europe-wide, which is obviously very attractive.”

Moderator Charles Larsen, partner at McDermott, Will & Emery, revealed that life sciences cases currently make up around 40% of the total cases at the UPC, suggesting that this sector was “more aggressive in this court, maybe than we would have thought”.

Heli Pihlajamaa, principal director at the European Patent Office, explained: “The EPO Unitary Patent dashboard gives information about the technologies and we have also seen that life sciences, medical technology and pharma companies have been active users of the unitary patent system.”

Pharma companies take the plunge

Laila Beynon, associate director of dispute resolution at Regeneron, acknowledged that initially, there was hesitancy among life sciences companies to bring their key patents into the UPC.

“It was expected that in the life science sciences sector, companies would keep their crown jewel patents out of the UPC, and they were nervous about putting them in,” she said.

However, she highlighted the filing of notable cases, such as the Sanofi, Regeneron v Amgen case and 10x Genomics v NanoString, signalling a shift in perception.

She described these cases as “a real leap of faith by life sciences companies to try and get injunctions in a new forum”.

These cases involved a long history of litigation and the UPC was an additional forum for these large life sciences companies to continue their dispute, explained Beynon.

Appeal cases slow to appear

She did, however, express surprise at the relatively low number of pending court of appeal cases, considering the numerous orders and decisions made so far.

This could be attributed to the high quality and defensibility of the judgments, which may potentially deter appeals.

Additionally, Brinkman mentioned the appeal process and the limited number of pending cases, speculating that the quality of initial judgments might be a factor influencing the appeal rate.

Alternatively, Beynon considered the tight timeframe for filing a defence—with only two or three months available—leaving little room for the month-long appeal process.

“Perhaps that's also why we're not seeing some of these smaller issues being fought in the appeals court yet, which is a shame,” she said.

Preliminary injunction advice

Brinkman emphasised the significance of provisional measures by underscoring the new ability to secure an injunction for an entire territory in a single action, signifying a substantial impact.

“It’s the urgency in these cases that’s important,” advised Brinkman.

He referenced the 10x Genomics case and highlighted the urgency in the case because the court only started after June 1 and the patent couldn’t be enforced before.

Brinkman described this to be “quite a hurdle”, as delaying could result in missing the opportunity for a preliminary injunction.

In such cases, “you would then have to wait for the proceedings on the merits to conclude”, he said.

He advised IP owners to act fast upon discovering a competitor entering the market, and to file in English to avoid delays with translations with judges if the action is urgent.

Take-up shows ‘faith in the court’

“I'm heartened to see the number of unitary patents that are being granted in the life sciences sector, which also perhaps shows a faith in the court,” said Beynon.

She noted that the UPC had demonstrated efficiency and issued well-reasoned decisions, instilling faith in its capabilities.

“It's encouraging to hear that people are receptive to the quality of judgment so far,” Brinkman responded.

The judges' high calibre made it evident from the start that quick and good decisions would be made, and this expectation has been met. The decisions have been both well-reasoned and promptly delivered, according to Beynon.

While the sector was cautious in its approach prior to the courts opening, she predicted that, with time, more life sciences companies might choose the UPC as their preferred forum for patent disputes.

LSPN was held on Tuesday, November 21 at BMA House in London. LSPN North America Spring 2024 will be held on April 10-11, 2024 in Boston, MA. To register or for more information click here: https://www.lspnnorthamerica.com/.

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