Chris Ryan, Eplit, Report on the UPC Mock Trial of 22 January 2016 in Munich: "The idea of the European Patent Litigators Association (EPLIT) to run a mock UPC trial based on the famous Improver v Remington litigation of the late eighties and early nineties struck me as a really interesting idea when I first heard the suggestion. It turned out to be a fascinating and highly educational experience when it was run last Friday (22 January) at the Sofitel Bayerpost Hotel conveniently close to Munich station.
The Improver litigation did more than establish the “Improver questions” in English law for assessing equivalence ([1990] FSR 181). It led to a series of decisions around Europe, based on the same European patent and the same alleged infringement, in which judges reached very different conclusions on the question of whether a claim for a “helical spring comprising a plurality of adjacent windings” covered a solid rubber rod with slits cut into it, which was capable of performing the same task – pulling out hair when set up in an arcuate configuration and rotated at speed around its axis.
Will the arrival of the UPC repair the fault line in the European Patent system, which the Improver story so clearly identified? On the evidence of the mock trial it will do just that. The “mock” Local Division in Munich reached a decision on validity and infringement which took effect in every designated Member State albeit that it may take time to develop a body of interpreted law and procedure that is consistent across the territory of the EU and distinct from that of the individual Member States from which judges may be drawn.
The panel of judges consisted of Prof Haedicke (Oberlandesgericht in Düsseldorf), Mr Zigann (Landgericht in Munich) and Mr Van Walderveen (District Court in The Hague). They were joined by Mr Klein as Technical Judge (formerly of the Boards of Appeal of the European Patent Office).
The patent proprietor was represented by Rainer Beetz (Sonn and Partner, Austria) and Leythem Wall (Finnegan Europe LLP, Great Britain). The defendant was represented by Marek Lazewski (Lazewski Depo and Partners, Poland) and Jan Stein (Ipracraft AB, Sweden). The case documents had been prepared by these representatives together with Markus Rieck (Fuchs Patent Attorneyes, Germany).
I found the main trial (in the afternoon) was slightly less interesting than the Case Management Conference which preceded it in the morning. The final conclusion...
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EPLIT – Report on the UPC Mock Trial of 22 January 2016 in Munich
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