Report of the Litigation Committee

Kim Finnilä (FI) Chair
Triona Walshe (IE), Secretary

The Litigation Committee has held three meetings to date in the present term.

The first meeting was a constituting meeting held on 29th November 2023. A second meeting was a 1½ day in person meeting held between 25th and 26th April 2024 in connection with the 97th Council meeting in Sofia, Bulgaria. The third meeting was a 1 day in person meeting held on 11th October 2024 in Munich.

For the term 2023-2026, the Executive Group of the Litigation Committee are Chair Kim Finnilä (FI), Vice-Chair * Tilman Pfrang* (DE) and Secretary Triona Walshe (IE). The Executive meets regularly monthly.

Three Sub-committees have been established:

  1. UPC Sub-committee / Chair Andrea Perronace (SM). Main Topics – Case Law of the UPC (divided by topics).

  2. National Litigation Matters Sub-committee / Chair Dinah Elisabeth Hesselink (NL). Main Topics – Analysis of National Practices and in the future the interplay between national and UPC proceedings.

    1. The Sub-committee is currently undertaking a survey to analyse financing of litigation for micro-entities at the national level, both for the patentee and the potential infringer, including public and private financing.
  3. EU and International Litigation Matters Sub-committee / Chair Stoyan Radkov (GB).

    Main Topics - Monitors developments on EU and international patent litigation matters; including policy developments and interstate agreements in so far as they impact patent litigation topics.

UPC update

Our cooperation with the other Observer organisations (BusinessEurope, EPLAW, EPLIT) continues to be extremely successful and well received by both the UPC AC and the UPC Registrar & IT Team in our ongoing regular meetings.

Meetings of the UPC AC

In the last meeting with the UPC AC, congratulations were extended to RO who became the 18th member of the UPCA on the 1st of September 2024. Mr Aleš Zalar (SI) has been appointed as the Director of the Patent Mediation and Arbitration Centre (PMAC) together with a 11-person expert group. A training event, hosted by Austria, for both legally and technically qualified judges together with the court officers and the director of the PMAC was held in September. A brief update was provided on the development of the new CMS. It appears that it is currently on track to meet the ambitious timeline of being ready for use mid-2025. POLIMI ( Politecnico di Milano) is now the 5th accredited EPLC institute. Information on the accredited institutes can be found here.

The case load of the UPC continues to be updated on a regular basis under the “News” section of the UPC website. The case load continues to steadily increase.

The epi preparations for the UPC AC meetings are under the auspices of the epi UPC Advisory Group consisting of the President, the Executive Group of the Litigation Committee, the Chair of the UPC Sub-Committee, and the Chairs of the EPPC and the OCC.

Meetings with the UPC Registrar & IT Team

The meetings with the UPC Registrar & IT Team are also progressing well. The focus of the meetings has now changed due to the development of the new CMS system. The observer groups are cooperating with the development team in building the new CMS. To facilitate this work, each observer nominated two persons from within their organisations who have significant litigation experience to provide practical feedback and assistance to the development team from the user perspective. An initial presentation on the new CMS was given on 12th September. Sandbox exercises began on 27th September and continue on a bi-weekly basis.

The Observers have received many thanks for this cooperation (initiated by the epi).

A UPC Business Intelligence with the UPC Registrar & IT Team aiming at producing dedicated reporting tools and generating various statistics had commenced earlier this year, however this project is currently on hold due to the development of the new CMS system.

Sub-committees

The UPC Sub-committee provided a summary analysis on the following aspects of UPC Decisions at the LitCom meeting of 11th October 2024: Interpretation of Patent Claims (Nanostring/10x Genomics), PI Standard of Proof (Nanaostring/10x Genomics); Rectification of Incorrectly Named Parties (Juul Labs vs NJOY); Public Access to Court Documents (Ocado vs Autostore); Change of Language in Proceedings (Curio Bioscience vs 10x Genomics); and Interpretation of Rule 220.3 (Neo Wireless vs Toyota Motors).

An article on access to court documents is published in this issue of the epi Information.

Another article discussing the role of Greek European Patent Attorneys in court is also published in this issue of epi Information.

The National Litigation Sub-Committee presented their preliminary findings after their research and analysis of the topic ‘Financing of litigation for micro-entities, whether instigating litigation or defending in a litigation action ( private funding and public funding, insurances)’. This topic was prompted by the initiative of the EPO to provide ( capped) funding for pre-litigation activities for micro entities. A final report will be issued in due course.

The topic of G1/24, the Amicus Brief and the recent poll conducted by the EPPC in relation to the referred questions was discussed in detail. Michael Fleuchaus (EPPC) leading the preparations for the amicus curiae brief joined the LitCom meeting on the 11th October as part of this discussion.

UPC related education

There have been several podcasts now delivered in relation to the UPC. First episode: General introduction/case law with focus on preliminary measures; Second episode: Case law with focus on inventive step; and a third episode (work in progress): Case law with focus on document transparency with guest Mr. Stothers (Ocado vs Autostore).

Additionally, some advanced level training included webinars on the Right of prior use, Public prior use and EPO opposition vs UPC revocation action have been completed.

This work is undertaken by the Inter-Committee Working Group (PEC, EPPC, Litigation Committee).


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