Mock Trial before the UPC

The UJUB, Union pour la Jurisdiction Unifiée du Brevet, recently organized a mock trial as an educational experiment to elucidate how the Unified Patent Court’s (UPC) agreement and regulations would work out in practice. The purpose of the mock trial held in Paris on 2 April 2015 was to test certain processes that will be available before the UPC. The case was based on an alleged patent infringement. The Mock Trial video with material is available here or as video only at https://www.youtube.com/watch?v=9jcwcRwMFCQ

… Introductory speeches addressed some of the currently debated issues related to the Unitary Patent and UPC. Mr Thierry Sueur, the President of UJUB, pointed out that that the level of the renewal fees as currently proposed by the EPO is significantly too high. He called for a maximum level of the equivalent of 3 contacting states, which would better reflect the number of EP member states currently validated and maintained over the patent lifetime of 20 years of an average EP patent. Mr Alexander Ramsay, the Vice-Chair of the Preparatory Committee of the UPC, reported progress in the preparation work. Concerns include the human resources challenge, i.e. making available a sufficient number of appropriately trained judges.

The mock trial itself had two parts. First, an ex parte hearing regarding a request to be allowed to take evidence. Second, an inter partes hearing regarding a preliminary injunction. The mock trial revealed some legal issues, which may have arisen in a real case too.
Technically, the case related to an improved abrasive product protected by a European patent. The plaintiff was an American company who had noticed an advertisement of a French company on the internet. The product description on the internet seemed to fall into the scope of the patent. The plaintiff filed a claim for infringement with the local division in Paris and the defendant reacted by filing a counterclaim for revocation with his defense.
In order to secure evidence, the plaintiff continued by filing an application for preserving evidence as well as for carrying out an inspection of the defendant’s premises. In order to guarantee the availability of evidence, the plaintiff requested that the application would be handled without hearing the defendant. The attorneys of the defendant, pointed to legal provisions that could be interpreted in their favor to create e.g. a formal reason to render the claims of the patent owner inadmissible. In particular they attempted to have the taking of evidence declared unlawful so that the evidence could not be used. The Court did however not follow these arguments.
Moreover, discussions were based on several unique features of the UPC that follow from its international jurisdiction. For instance, not only that a preliminary injunction has cross boundary effect, but also the ex-parte order to take evidence. However, the local authority, such as the bailiff who executes the order, has to apply national law. This led to a discussion as to the extent to which national law vs. UPC law had to be applied, and whether this had any consequences for the validity.

This mock trial illustrated that Interpretation of the UPC provisions will have to be developed in due course, once the UPC has started. Harmonization will be created over time by the Appeal court based in Luxemburg.

The KIPA team is experienced with Pan European Litigations and includes several European Patent Attorney with the necessary additional qualification to represent clients before the UPC. Please do not hesitate to contact us with any related questions.