Law in the Global Marketplace – Hogan Lovells Annual Patent Conference

Hogan Lovells demonstrated its global reach by holding its annual UK patent conference in London as a joint session with its “Law in the Global Marketplace” conference in California.  A presentation on the current status of the UPC was made from London, an update on US patent legislation was made from California, and a transatlantic panel session followed (chaired from London by a German).  The session was interesting, and featured a variety of views leading to an open discussion.  Highlights follow below.

• Hogan Lovells have conducted an extensive survey of patent holders (discussed here) to determine their attitude to use of the UPC – the level of comfort with the UPC is rising, but patent holders are generally planning to opt key existing patents out of the UPC.
• Discussion of UPC opt-out was lively and interesting – opt-out with a tactically timed opt-in is a strategy under active evaluation.
• Concern was expressed from the US that individual jurisdictions may attempt to attract business by patentee-friendly attitudes (along the lines of the Eastern District of Texas, which is taking an ever increasing share of US first instance patent litigation).
  • European delegates were less concerned about this because of the measures taken to harmonise the judging panels.
  • US delegates noted that patentee-friendliness of process, rather than the attitude of the judges, may determine favoured jurisdictions in forum shopping, given that most cases settle.
• The prospects of further US patent law reform are significant – bills are progressing quietly but smoothly through Congress
  • Much of the focus is on reducing perceived unfair advantages to NPEs (requiring further detail in pleading, limiting discovery, limiting recoverable costs)
  • A secondary focus is harmonising standards between the Patent Trial and Appeal Board and the District Court

Richard Lawrence 9 November 2015