Does the unified patent court create forum shopping?

Abstract

The overall objective of this Thesis shall be to examine the factors giving rise to forum shopping in the context of the Unified Patent Court. European patent law is about to undergo fundamental changes and although forum shopping is already prevalent under the current patent litigation system, the stakes will be much higher under the Unified Patent Court. The first part of this Thesis shall focus on the practice of forum shopping under the current European patent litigation system. It will be shown that Patent Law in Europe is still territorial in nature and this has led to the fragmentation of patent enforcement. There is no unified post-grant procedure and this creates problems. An in-depth look at the structure, jurisdiction and competence of the Unified Patent Court shall follow. The UPC is a highly specialized patent court and this could give rise to pro-patent bias. The First Instance jurisdiction of the UPC is complex and patentees will have a number of trial courts to choose from. A lot will depend on the role of the Court of Appeal. The instances giving rise to forum shopping shall be analysed; these include: injunctions, bifurcation, the language regime and the opt-in/opt-out regime. Much discretion is left in the hands of the judges and this will certainly play a part in shaping the development of the UPC. The focus is then shifted onto the UPC’s legal validity. Other concerns such as patent trolls in Europe and the similarities between the UPC and the US Patent System shall also be discussed. The final part brings together a number of observations that have emerged throughout this Thesis, to determine whether forum shopping will continue, whilst taking into consideration the practical implications of the UPC. A lot of this debate is surrounded by uncertainty and speculation and it will be shown that any word on the extent of forum shopping in the Unitary Patent System is far from final.