INTRODUCTION Contributed by: Andreas von Falck, Hogan Lovells International LLP
Patent Litigation Around the World Following the opening of the Unified Patent Court (UPC) on 1 June 2023, 2024 was the first full year of operation of the new court with its own new law and procedure. And what a year it was. With around 600 cases filed and almost 600 decisions rendered in 2024 alone, the UPC, through its local divisions, its regional division in Stockholm, and its Appeal Court in Luxemburg, has had a chance to shape the case law. While the Rules of Procedure are relatively detailed, the substantive patent law of the Court has yet to be fully developed and will ultimately be based on a combination of EU member state law and the Court’s own decisions. Accordingly, decisions related to all areas of the law, whether regard- ing file inspection rights of the public (Court of Appeal, UPC_CoA_404/2023), security for cost (Court of Appeal, UPC_CoA_548/2024), the doc- trine of equivalents (Local Division The Hague, UPC_CFI_239/2023), claim construction, nov- elty and inventive step (Court of Appeal, UPC_ CoA_335/2023), or the discretion of the court to consider proportionality in entering injunc- tion against defendants (Local Division Munich, UPC_CFI_15/2023). In the area of patentability in particular, the developments have been fast, and strong guidelines have now been estab- lished that users can rely upon (Munich Cen- tral Division, UPC 1/2023). Initial concerns over how patentee friendly – or unfriendly – the new court was going to be have long since been replaced by a widespread view that the UPC is balanced and fair in its decision-making. Still, ongoing appeals from the Local Divisions and the Regional Division as well as new cases will help sharpen the law in 2025 and will give users even more legal certainty in 2025. In the United States, 2025 also marks the begin- ning of the Trump administration. If anything, there appears to be a belief that President Trump
will support stronger rights for IP owners and more efficient proceedings at the USPTO. The following report looks around the world and analyses events and decisions since our last update that will impact on users of the various patents systems in 2024 and beyond. The courts continued in 2024 to be involved in a number of FRAND disputes. The Panasonic v Xiaomi [2024] EWCA Civ 1143 dispute in particu- lar provided a number of firsts at the beginning of October 2024: • a conclusion that the patentee was in breach of its obligation of good faith under clause 6.1 of the ETSI IPTR Policy; • a determination of the terms of an interim licence; and • a declaration that a willing licensor would grant the implementor a licence on those terms. Europe The UK The interaction between these rate-setting dis- putes and wider patent litigation in other jurisdic- tions will no doubt continue to evolve in 2025. The court continues to be involved in a number of multinational life sciences disputes, including those arising out of COVID-19 vaccines. The UK Supreme Court is due to hear an appeal in the Summer in relation to whether the exclu- sion from patentability of a program for a com- puter “as such” by Section 1(2) of the UK Patents Act 1977 has any application to artificial neural networks (following the Court of Appeal’s judg- ment that it does, Emotional Perception AI Lim- ited v The Comptroller [2024] EWCA Civ 825).
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