Unified Patent Court

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New multinational patent court

The launching of the Unified Patent Court (UPC) on 1 June 2023 marked the most radical reform of the European patent system in decades. The UPC raises new questions and concerns and will require new strategies. We are an active part of these exciting developments, dealing with several matters at the lower court and appellate levels.

The European Patent (EP) – which consists of a bundle of national patents in selected EU member states – is making room for European patents with unitary effect (Unitary Patents - UPs), whose territorial scope extends to all 24 participating UPC states. The traditional country-by-country approach to litigation now faces serious competition from the UPC: a multinational court for pan-European patent litigation.

The UPC system offers exciting opportunities for patentees and implementers, as it creates a single approach to patent registration and enforcement across the UPC states. This gives practitioners a new perspective on patent strategy and on enforcement of patent portfolios. Patentees are able to seek remedies, such as injunctions and damages for the entire UPC territory in one proceeding. At the same time, alleged infringers are able to establish their market position faster by having a UP revoked or by asking for a declaration of non-infringement.

With the launch of the UPC, a new era of patent litigation in Europe has started covering a huge market. Along with the central division, local divisions are and will also be playing an essential role, including the important Dutch location. Since the UPC started, we have seen that it is speedy, used by companies from a wide range of industries (including – to a larger degree than expected – life sciences) and that English is often used as working language. Also, multinational teams are key to match the multinational composition of the judges' panels. With our UPC team and international outlook, we are ready to provide any assistance needed across all areas of law, ranging from patent law to competition (FRAND) defences, procedural aspects and more!

Anne Marie VerschuurPartner
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De Brauw is well positioned to assist clients with this milestone development, and in litigating before the UPC. Our IP/Tech team is led by Tobias Cohen Jehoram, a seasoned Supreme Court litigator with ample experience in patent litigation, and Anne Marie Verschuur, an experienced IP litigator who focuses on technology and patents. The team forms an integrated part of De Brauw's 150+-strong Litigation practice and closely participated in the development of the UPC system. Our multidisciplinary approach and strong track record makes us particularly well suited for complex, multidisciplinary cases – including enforcement and invalidation proceedings, and ranging from pharmaceutical cases to other technological sectors – and for matters related to standard essential patents (FRAND litigation). We have a solid network in all important jurisdictions and operate in international teams. We are proud to participate in UPC cases with our diverse teams.

The team is very strong in patent litigation and is able to provide services on a big scale if needed. The response time is always short. I regularly work with them and don’t want to work with somebody else.

LEGAL500 testimonial, 2023

The reason for the set-up of De Brauw's UPC team is that the size and scope of UPC proceedings is larger than before, while at the same time the deadlines are short and judges have different national backgrounds. This is why our UPC team consists of Dutch patent litigators, and a network of leading patent litigators in other EU jurisdictions. This allows us to call on local experts and to carry out our work seamlessly. We also rely on our deep experience with large, complex litigation projects in non-IP cases (mass claims, follow-on cartel damages claims, etc).

Our UPC team also includes members from our arbitration practice, whose backgrounds vary and who have specific experience with the various new aspects of UPC litigation, such as witness cross examinations. We complement this with our technical expertise in different fields; for example, we have a team member who has a PhD in chemistry. For FRAND cases, we call on our leading competition law colleagues who have ample experience in dealing with these kinds of matters. By having a diverse, broad and flexible team, we are able to provide the best possible service and the highest level of expertise that can make the difference in litigation before the UPC.

In our IP practice we focus on complex, cutting-edge, multi-jurisdictional litigation, and of course patent litigation is part of that. In our practice we operate in the forefront of cross-border litigation end have built up ample experience in coordinating EU or worldwide IP litigation cases. With the tech expertise in the team and being involved in the most important FRAND cases, we are geared up for UPC litigation. From the UPC Agreement and Rules of Procedure, it is already clear that many strategic choices are available, both for plaintiffs and defendants.

Tobias Cohen Jehoram