IPWatchdog Unleashed: The Unified Patent Court One Year In, with Tobias Wuttke

IPWatchdog is excited to introduce IPWatchdog Unleashed, an original podcast where each week we will journey into the world of intellectual property to discuss the law, news, policy and politics of innovation, technology, and creativity.  With analysis and commentary from industry thought leaders and newsmakers from around the world, IPWatchdog Unleashed is hosted by world renowned patent attorney and founder of IPWatchdog.com, Gene Quinn.

This week, our inaugural conversation will take us to Europe, where the Unified Patent Court (UPC) has just celebrated its first anniversary. After more than a decade of being told the UPC would come into being, the court is now here and we are seeing the fruit of the labors of those in Europe who have been committed to bring into being a Unitary Patent across Europe, which is being litigated at the UPC and which offers patent owners a cheaper, more streamlined approach to both obtaining a single patent across much of the EU and a court that, based on early indications, seems comfortable granting preliminary and permanent injunctive relief to stop infringement.

Joining us for this conversation is my good friend, Tobias Wuttke, who is a partner and attorney at law with Bardehle Pagenberg, where he specializes in national and cross-border patent litigation. Wuttke and his firm do a lot of work at the UPC, and they also litigate in German courts. But collectively, Tobias and his firm account for 20% of the market share of UPC cases file to date. His offices are located in Germany but we were happy to have him in the studio at IPWatchdog for this conversation.

“It is a major factor when it comes to global patent litigation,” Wuttke explained about the UPC. “For the simple reason that you have the option to get a court decision for 17 EU states, you reach almost as many people as in the United States, and so far, for risk management, it is just a must to consider the UPC and the unitary patent that goes hand in hand. It’s point number one.”

If you haven’t been paying attention to the UPC, now is a good time to start. Simply stated, you cannot afford to ignore the UPC as a patent owner or innovator.

“Each month, between 10 and 20 new infringement actions are coming in, and so the UPC is building up momentum,” Wuttke explained.

“We have life sciences cases, we have pharma cases, so it’s not only the high-tech sector which is fighting at the UPC,” Wuttke said. And users are from all over the world, with the most active filer being Panasonic.

The UPC should be of particular interest to patent owners in the United States because injunctions are available, including preliminary injunctions. On this point, Wuttke explained:

“The big thing for U.S. users is, will it be a system of automatic injunctions? And the answer is very likely yes; there will be no real eBay test.

There is of course in the law a discretion of the UPC to grant the injunction, and if you talk to judges, you get the feel it will be an automatic injunction system with some exceptional scenarios where the automatic injunction may be watered down by a use up period. Imagine for example a pharma case where a certain drug, which is important for certain patients, is patented, and basically you would need time to switch over these patients to the drug which is from the innovator, and that there may be a use up period in that regard. No judge anywhere is going to say, oh patient who needs this tomorrow, you can’t have it because of a patent injunction.”

To hear more, please join Gene Quinn (IPWatchdog) for a conversation with German litigator Tobias Wuttke of Bardehle Pagenberg.

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