Exclusivity, Transitional Arrangements and Opt-out; Risk of financial disaster for small companies in patent litigation, paper presented at the ERA/Queen Mary Conference in Paris by Jochen Pagenberg, Bardehle Pagenberg
The crucial point for success or failure of the whole court system is the quality, efficiency and cost of the proceedings before the new court. The shift of jurisdiction from the national courts to the Unified Patent Court (UPC) after a transitional period of only seven years with exclusive jurisdiction also for EP patents has therefore been a point of dispute from the beginning. Nobody seems to have requested this exclusivity, but nobody in Brussels was willing to change it either.
Keeping the national courts as a back up for litigating EP patents would solve a great number of open questions and problems in particular for small and medium enterprises (SMEs) which fear that they have been forgotten in the political discussion.
II Promises of alleged improvements
1. Industry as well as practitioners had always been promised that the introduction of the unitary patent and the corresponding UPC would ensure expeditious and high quality decisions which were to be measured against the best existing national patent courts. In this context users had emphasized that abolishing jurisdiction of the experienced national courts for EP patents before the UPC will have been tested and proven its quality would constitute a serious error. To force patentees of EP patents who only need protection in a few countries into the same judicial system as owners of unitary patents who need protection for the entire EU disregards the different needs of users.
Read the entire paper here.