“Cautious optimism but unsold on the benefits” could be the summary of the Gowling WLG IP team 2022/2023 UPC survey findings. The research, conducted in late 2022 and early 2023, gathered the views of a wide demographic of the IP community. Respondents were drawn from in-house and private practice IP professionals spanning a range of industries and representing companies with patent portfolios ranging from a handful to more than 20,000.
The survey revealed that, despite numerous setbacks including delays, the impact of Brexit, as well as more recent issues relating to the Case Management System, there is a cautious optimism the UPC will be a success. However, this optimism needs to be viewed in context: only a modest proportion of respondents believe the new system will benefit their business and an average of 64% of existing European Patents are predicted to be opted out. Opt-outs have got off to a slow start, with only approximately 23,000 patents opted out so far, but are expected to accelerate as the opening date of 1st June 2023 approaches.
In some respects, the current tempered optimism surrounding the new system is within the control of the UPC itself. Responses to the survey make it clear the court will need to address several important points of law and procedure at an early stage if users are to have confidence in the system. Furthermore, respondents consider the quality and transparency of judgments, not costs, as the driving factor in deciding to bring proceedings before the UPC.
Attitudes might also shift once companies are better prepared. Responses indicate that, currently, a significant proportion of companies are seemingly unprepared for the new system and only 30% either have a settled strategy or are in the process of creating one. It therefore seems that a general ‘wait and see’ approach still persists – perhaps not surprising given the false starts the system has endured, but one that requires revisiting on the eve of what promises to be the biggest change in the European patent landscape for more than 50 years.
See the full analysis of our survey results here.
For more information on the UPC visit gowlingwlg.com/upc.
About the author(s)
Arnie Francis is a senior associate in Gowling WLG's IP team. He is both a UK (2015) and European (2016) qualified patent attorney.
Michael Carter is a principal associate in our award winning intellectual property team, with particular experience of enforcing a broad range of intellectual property rights. Having spent time on secondment at two leading automotive brands, he understands the challenges involved in building and maintaining a strong brand identity, and protecting the intellectual property rights in the technology which underpins the business.
