UPC Invitation Litigating SEPs in the UPC

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In the last couple of years dozens of SEP cases have been litigated in Europe in different industries and in relation to various standardized technologies. Most of the cases were litigated in the patent litigation hot spots Germany and the UK, but there have also been SEP cases in France, the Netherlands and Italy.

The courts in Germany have adopted a rather patentee friendly approach to FRAND defenses in SEP cases. The question of whether or not the implementer is a "willing licensee" has become a key criterion – and since most German courts apply a very strict test to this requirement, many defendants have been found not to be willing, leading to dismissal of their FRAND defenses. In several cases, SEP infringement claims have been accompanied by anti-anti-suit injunction cases.  In contrast, UK courts take a different approach. Unlike in Germany, provided a relevant SEP has been found to be valid and infringed, UK Courts will go beyond considering FRAND defenses in the context of awarding or withholding an injunction, and in appropriate cases will engage in rate-setting.

From the perspective of SEP owners, the Unified Patent Court might be another attractive forum for SEP infringement cases. Due to the broad geographical scope of decisions of the Unified Patent Court (which, at the beginning, will be in force in 17 participating member states), the threat of a UPC-wide injunction may significantly increase the pressure on the implementer to take a license to the SEP holder’s portfolio.

In this webinar, we will analyze how SEP cases may develop before the Unified Patent Court. We will discuss whether the Unified Patent Court is more likely to adopt a rate-setting approach similar to the UK or if it is more likely that the court will adopt the "German model" with a focus on the claim for injunctive relief and the strict test for the FRAND defense.  Further, we will explain what role anti-anti-suit injunctions may play in future SEP litigation before the UPC.

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Please note that we will be using Zoom for our webinar. We can provide alternative access. The Zoom details will also provide an option to join by phone should that be required – just let us know.

We look forward to your registration!

Best regards

Your Hogan Lovells Team

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