90% of Patent Holders to opt key patents out of the UPC – Hogan Lovells Survey

London - 4 November 2015 - Nine in ten major international patent holders surveyed by Hogan Lovells intend to opt their key existing European patents out of the Unified Patent Court (UPC).

Patent Revolution: A Survey on the Unified Patent Court questioned organisations collectively owning over 20,000 patent families across a range of industries about their sentiments towards the UPC, scheduled to launch in April 2017.

The survey found that eight in ten respondents are concerned about litigation proceedings being brought against them in a local or regional division of the Court with limited experience of patent litigation, while 63% are concerned that regional divisions of the Court might interpret the UPC rules in a way that reflects procedures in their national courts.

Consequently, 81% of survey respondents intend to litigate in regional divisions where the national courts are considered to be experienced in patent matters.

However, on their patent strategy as a whole, 67% of respondents will apply for Unitary Patents across their portfolio, and 60% would reconsider opting their key European patents back in when the UPC has sufficiently matured.

Commenting on the findings, Hogan Lovells patent litigation partner Daniel Brook said:

"What's interesting is the lack of stigma attached to opting out key patents whilst the UPC beds down. While patent holders can see the benefits of a single forum and lower costs, they are wary of such an unproven and transformative regime and are waiting for the court to become established with a body of case law before taking a view on whether they can trust it with their patent portfolios."

The UPC, which will have its main seat in Paris and sub-divisions in London and Munich, as well as local and regional divisions, will provide a central forum in which companies can enforce patent rights across multiple territories in a single court action.

During a seven-year transitional period, patent holders can choose to opt their patents out of the regime.

This survey suggests that most will do so, conscious that there is no established case law or precedent for the UPC and so judgments are unpredictable, and that patents can potentially be revoked across all member states in a single court action.

In addition, 76% of survey respondents are concerned about the power of the single forum of the UPC to impose an adverse patent litigation decision on all member states.  However 73% believe the UPC will achieve its aim of increasing certainty in the patent world once the system settles down. While 95% were attracted by the prospect that one favourable patent decision is applicable in all participating states. And 85% would use the UPC due to the potential lower cost of litigation.

Sign up to read the full survey here.


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