LSPN Spring: Preliminary injunctions ‘a focal point’ in UPC decisions

A significant uptake in unitary patents show court is here “in a big way” | Speakers shed light on the UPC's approach to preliminary injunctions and evidence gathering at LSPN Spring in Boston.

Despite initial delays and challenges, the Unified Patent Court (UPC) is gaining momentum and is set to become a key forum for patent litigation within Europe, according to lawyers at LSPN North America Spring.

With a growing number of patents and cases being brought before the court, the UPC is determined to resolve teething issues such as inconsistencies in national laws and languages.

Speaking at the two-day event in Boston, Bryce Matthewson, partner at Powell Gilbert, pointed out the growing significance of the UPC, and its increasing influence on patent litigation within Europe.

Matthewson noted that the UPC is now fully operational and making a substantial impact.

He highlighted statistics indicating a significant uptake in unitary patents, showing a clear trend towards increased confidence in the system.

"The truth is, it's here, and it's here in a very big way," Matthewson said. "What we've seen is that basically two-thirds of patents are now in the system, and this trend is only increasing."

“People are having increased confidence in the system and we see that also in a number of cases which have been filed with the court.”

‘Preferred’ venue for disputes

One of the key takeaways from Matthewson's presentation was the notable involvement of the pharmaceutical and life sciences.

Despite initial concerns, approximately one-third of patents granted in these sectors are designated as unitary patents.

"If you're facing litigation, there is a real chance that it's going to be a unitary patent," Matthewson warned. "It's clear that the UPC is becoming the preferred forum for resolving patent disputes."

Analysing the current status of litigation within the UPC, Matthewson highlighted that, so far, the majority of cases have been infringement driven.

Out of the 123 infringement cases filed, many are part of broader disputes involving parallel jurisdictions.

In terms of revocation actions, Matthewson mentioned that although there were concerns, only 32 cases have been filed, indicating a less aggressive approach than anticipated.

While it's still early to draw definitive conclusions, with only procedural hearings happening so far, more decisions are expected soon.

“Within the next six months, we should get real meat on the bones of how the court is going to be applying the law,” predicted Matthewson.

Inconsistency issues

Matthewson acknowledged that the system is not without its challenges.

For example, “there are gaps in the rules. The rules are published in three different languages, there will certainly be inconsistencies between them,” explained Matthewson.

Despite these challenges, Matthewson remained optimistic about the future of the UPC, stating, "The judges are finding ways to make it work. They are filling in the gaps and coming up with practical solutions to problems."

“One of the things which I think in terms of advising clients has made it a little bit challenging is that the different divisions are applying the rules slightly differently,” noted Matthewson.

Some inconsistencies between the approach of the different divisions as judges are bringing a “bit of national flavour” to the system.

Confidentiality is an important issue, with courts willing to issue protective orders for confidential trade secret information. However, there are some inconsistencies in how different courts apply this principle, according to Matthewson.

Language is also a significant issue, with English now being the majority language in the court. The court is generally willing to convert proceedings into English if requested by the defendant, with the aim of preventing language from being used as a strategic advantage.

Increasing trend of granting preliminary injunctions

Zoe Butler, partner at Powell Gilbert, highlighted the increasing trend of granting preliminary injunctions by the UPC. She shed light on the court's approach to validity and infringement issues.

According to Butler, "Preliminary injunctions have been a focal point in recent UPC decisions.”

"The legal framework in the UPC agreement on rules and procedure is relatively light, making it a discretionary remedy," she added.

“We're starting to see how the courts are applying those factors and taking them into account," added Butler.

Butler addressed the importance of assessing the strength of a case on infringement and the validity of patents when considering preliminary injunctive relief.

"The court may require the applicant to provide reasonable evidence to satisfy the court with a sufficient degree of certainty that the patent is valid and infringed," she explained.

Speaking about the urgency requirement for preliminary injunctions, Butler said, "Urgency isn't a requirement. But we've had some commentary from the judges on what urgency means, and looking at the issue of damage and the likelihood of damage."

"The key takeaway is that if you're considering preliminary injunctive relief, you need to really assess the strength of your case on infringement and the strength of the validity of the patents because that will be more likely to hit the focus of the court," Butler added.

UPC approach to preliminary injunctions and evidence gathering

She highlighted several recent cases, including MyStromer v Revolt Cycling, and 10x Genomics v NanoString, which provided insights into the court's approach.

"In the MyStromer v Revolt Cycling case, an ex parte application for preliminary injunctive relief was granted on the same day it was made. The court found the lack of a protective letter from the defendant as a reason to grant the injunction," Butler explained.

Similarly, in the 10x Genomics v. NanoString case, an interim injunction was granted, although the court expressed doubts about the validity of the patent.

This case showcased the court's willingness to address issues of validity and infringement promptly.

Reflecting on the decisions made by the court, she said, "Our sense is that national practices are going to play a significant role, depending on where the local division is, and the divergence between the different local and regional divisions.

“But ultimately, the Court of Appeal is showing itself very willing to grapple with these issues, and quickly," added Butler.

She also addressed the court's approach to evidence gathering and seizure orders.

Several decisions have been made in this regard, indicating the court's proactive stance in enforcing such orders.

Butler emphasised the importance of considering the UPC as part of a broader jurisdictional strategy, both offensively and defensively.

With the court's increasing trend in granting preliminary injunctions, understanding its approach to validity and infringement issues has become crucial for patent holders and litigants.

LSPN Spring runs from May 8-9 at the Sheraton Boston in Boston, Massachusetts.

This year marks the event's 6th year and covers everything from patentability to eligibility, prosecution to litigation, the agenda will provide valuable insights into the entire lifecycle of US patent protection.

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