Update IP, Media & Technology No. 82
The European Unified Patent Court is coming – Risk Management Required!
The European Unified Patent Court ("UPC") will start its work on June 1, 2023. This also means: As of June 1, 2023, you can be sued before this new court. Many lawsuits are currently being prepared and will be filed in June and July. If you wait until a lawsuit is filed and don't take action until then, you could easily get caught out.
What will change
The following parameters will change:
- Frequency: Many patent owners, including so-called "patent trolls," will file patent infringement lawsuits. The calm before the storm will soon end.
- Reach: The rulings of the new court will apply simultaneously in up to 17 countries, including Germany.
- Effort: Defense will be much more costly (compared to national proceedings).
- Languages and remote court locations: The court has divisions spread across Europe, ruling in local languages and yet with effect for Germany as well. So you may have to defend the production at your location in Germany in court in Lisbon in Portuguese.
- Time pressure: There is a strict deadline regime with very short deadlines. Many lawsuits will be received just before the summer vacations or just before the Christmas vacations. The court takes no account of vacations or national holidays, not even Christmas.
Risk Management: Required by Law
This new, significant and potentially existentially threatening risk requires risk management. Every German company is legally required to do so under Section 1 (1) of the StaRUG. For many companies, even stricter requirements apply, e. g. under section 289 (2) of the German Commercial Code (HGB). Managing directors and board members who fail to take appropriate measures can be held personally liable.
Measures are required to analyze and deal with risks in view of the changed circumstances. This also applies if you have not yet been confronted with a specific patent. If you wait until the lawsuit is filed, it is much more difficult to defend yourself adequately. Risk management must be forward-looking.
And the requirements for risk analysis and risk treatment increase as soon as you are aware that a patent could be a problem. This is true even if the patent owner has not contacted you in recent months. His silence may simply be because he wants to take advantage of the new court system. The patent attorneys (and internal departments) who handle your own patent applications may need assistance in this regard.
What you can do
We support you to make your risk management a success. We have compiled the most important tips for you in a fact sheet, which you can request from patent(at)heuking.de. If you implement these measures, you will already be much better prepared, you will be able to enjoy your vacation even if a lawsuit is served shortly beforehand, and you will avoid any personal liability risk. For further questions please contact us!