UPC Judge comments on proposed SEP regulation

It is always fascinating when two worlds collide, especially where one has a foot in both of them. As the European patent world (very much including the lawyers and patent attorneys of the UK) gears up for the imminent launch of the UPC (now counted in hours), I’ve also been considering the EC‘s plans for regulation of the SEP market.

It is trite to observe that the regulation as proposed is controversial, with strong views on both sides (how surprising and unusual in the FRAND space). It has therefore been interesting to discuss it, both at recent conferences and in private with clients and contacts. 

I have my own views on the proposed regulation (informed by a naturally English preference for comparables and natural justice, as well as by acting on both sides of the equation), but my views are of far less interest than those of Klaus Grabinski, chief judge of the UPC court of appeal. 

Speaking at the inauguration of the UPC, it is reported that he commented that he felt obliged to comment on the proposed regulation, and that in his view it was not currently compliant with the EU Charter of Fundamental Rights. Indeed, whilst he spoke favourably of enhanced transparency, he had concerns over the proposed regulation restricting access to justice, questioning why SEP owners should not be entitled to bring infringement actions in the EU whilst they could in the UK and the PRC.

The arguments are complex and nuanced, but needless to say the UK courts will always be willing to settle FRAND disputes between parties. Now that the UPC has opened its doors, we shall see how SEP litigation in that area plays out.

Separately, it was also gratifying to see that FRAND is heading back to the UK Supreme Court, with permission being granted to Apple to appeal the Court of Appeal's decision concerning the timing of an injunction as well as the interplay with allegations of an abuse of a dominant position.