First UPC User Forum

The UPC now being operational and entrusted with high profile cases across various industries, it is high time to establish a new format for an exchange of experiences and best practices between the UPC judges and UPC users: The UPC User Forum.

The aim of this new format is to facilitate a dialogue between bench and bar. To ensure a structured and informative discussion, we kindly request that you submit your questions in advance. This will allow our panelists to prepare thoroughly and address your questions comprehensively.

SOME TENTATIVE TOPICS FOR DISCUSSION:

1. Material Law (UPC Patent Law, Antitrust Law / FRAND): Does the "Formstein Defense" (prior art defense) only apply — if at all — to equivalent infringement, or also to literal infringement? FRAND defense: Is the UPC adopting the German focus on the "willingness" of the parties, or is the material FRAND-ness of the licensing offer/counteroffer decisive?

2. Procedural Law (UPCA, Rules of Procedure, Brussels Regulation): Does the UPC have jurisdiction to rule on damages occurring in Spain or Poland ("long-arm jurisdiction" under Art. 71b para. 3 Brussels Regulation)? Preliminary injunctions: Is there a sui generis standard for urgency under the UPCA?

3. Case Management Issues (CMS, deadlines, hearings, stay, experts etc.): To stay or not to stay: is the local division handling the invalidity counterclaim? Can the parties influence this decision, and if so, how? Is plaintiff expected to submit a private expert opinion on all or some technical aspects together with the complaint?

4. Evidence Collection & Enforcement (including Arbitration Awards, Settlement Agreement, Saisie): What is the burden of proof for the applicant? Best practice?

All discussions will take place under the "Chatham House Rule".