Two IPs In A Pod
Brilliant inventions, fresh product designs, iconic brand names and artistic creativity are not only the building blocks of successful business - they deliver a better world for us all. But these valuable forms of intellectual property must be protected in order to flourish. We are the Chartered Institute of Patent Attorneys - the UK's largest intellectual property organisation. Our hosts Lee Davies and Gwilym Roberts chat with entrepreneurs, creatives, patent attorneys and the occasional judge about how patents, trade marks, designs and copyright can improve our lives and solve problems for humanity.
Two IPs In A Pod
Practical experiences and insights of using the UPC
We’re back! Kicking off season 12, Lee and Gwilym are joined by Rachel Fetches, IP/Patent Litigation Partner at HGF.
Discover how the Unified Patent Court is set to transform patent litigation across Europe. This episode sheds light on the shift from a fragmented to a more centralized system, offering patentees the promise of pan-European injunctions and a streamlined process.
Join them as they discuss the potential of the UPC for SMEs, international businesses, and the opportunities and hurdles presented.
Hey, gwilym, welcome back. We've both been away from the podcasting world for a couple of months, I think.
Speaker 2:It's amazing what happens. What do you do? What's going on?
Speaker 1:I don't know. I live outside of the screen box because I've got used to seeing myself. So yeah, it's been a couple of months since I've actually seen you. You only exist in this world now for me.
Speaker 2:We had noodles.
Speaker 1:Oh, we did have noodles. Yeah, we went to the noodle bar. That was good. I've just got back from Canada. I've just been to the IPIC, the Intellectual Property Institute of Canada's annual conference, so that was really cool last week.
Speaker 2:Do you know what that brings? A really good question. I've always wondered how do you pronounce where you went St John's? No, I can pronounce that bit. No, the three words they put together are new found and land.
Speaker 1:So I've had lots of Canadians laughing at me all of last week because I obviously pronounce it in the way that I pronounce most things in the way that it's spelt. So yeah, newfound land, no, newfoundland.
Speaker 2:I thought it was Newfoundland. No, newfoundland, newfoundland. I thought it was Newfoundland. That's a very British thing to do, though, isn't it?
Speaker 1:They seem to take all of the vowels out is the way you pronounce it. So I thought I did find over there and I haven't necessarily noticed it in other parts of Canada when I've been there, but certainly in Newfoundland they are the most courteous, kind car drivers anywhere in the world. So if they see you anywhere near the curb and they could be 100, 200 yards away they'll stop and even if you're not going to cross the road, you feel obliged to cross the road because they've stopped. So I found myself zigzagging across the road because cars kept. And apparently that's just how they work out there. They respect the pedestrian. The pedestrian comes first. If you're standing on a street corner, all of the traffic will stop so you can cross the road.
Speaker 1:It's nearly got me killed in London this week because I've forgotten that I've got back to London.
Speaker 2:Can you imagine, how many cars are there Not?
Speaker 1:many to be fair.
Speaker 3:I Not many.
Speaker 2:To be fair, I was going to say it's like three yeah, wow, yeah, because I've done the opposite in Vietnam, where you just walk and don't look and the cars swerve around you, which is the almost exact opposite. I'll just go quickly to the lack of vowels. So what would your name be if we took all the vowels out? Lidavus, see, mine doesn't change.
Speaker 1:Rubits, rubits, rubits. But on the more serious side, really good to catch up with the Canadians. We have a great relationship with our Canadian colleagues.
Speaker 2:You'll remember they came on the podcast when we were in Atlanta.
Speaker 1:So it was great to catch up with Paula and Kat, who were our guests then. And, yeah, fascinating week looking at things like how regulation's going in Atlanta. So it was great to catch up with Paula and Kat, who were our guests then. And yeah, fascinating week looking at things like how regulation's going in Canada. So they've had their equivalent of IPREG in place now for sort of three or four years. So it's good to see how that's going and to be reminded of all of those painful teething problems that you have when you bring on a new regulator, an independent regulator, for the first time. Spend some time looking at privilege in canada, because that's an issue that we've attorney, uh, agent privilege that's something we've been working with with a pick on, because that's, um, that's something that agents don't currently enjoy in canada's privilege because of recent rulings. Yeah, and obviously we talked about cptpp. How could I go to canada and not talk about the comprehensive and progressive agreement of trans-pacific partnership?
Speaker 1:so that's, so well say it so I've lived it for so many years well, we're in now, aren't we?
Speaker 2:no, peru, thank you, thank you, peru.
Speaker 1:So um, yeah, no yeah yeah, big up to peru for um, for being the final. Are you a ratifyee? Is that what you are if you ratify something? But yeah, for ratifying and allowing the UK to join. We really ought to get Rachel on, because I'm conscious that she's sat there listening to us.
Speaker 2:Oh, that's what you do in podcasts, isn't it?
Speaker 3:Yay, that was it, lee Davis and Gwilym Roberts are the two IPs in a pod and you are listening to a podcast on intellectual property brought to you by the Chartered Institute of Patent Attorneys. Hey, rachel, hello, how are you? Hello, hello, very well, thank you.
Speaker 1:So the score normally is that we ask you to introduce yourself, so can you, of um, tell the listeners who you are, what you do and why you're on the podcast, if that's okay?
Speaker 3:sure, yeah. So, um, I'm, I'm a patent litigator, so uk, uk qualified um, also dual qualified in ireland. Now, um, and I'm for 20 years now I've been patent litigation specialist in the uk but also an awful lot of, um, kind of European, pan-european patent strategy advice. I'm based at HGF, so I'm in the mixed model firm that we have in the UK and working with a huge team of patent attorneys on the patent litigation side of things. Yeah, that's my and I. You didn't, you didn't actually forewarn me about your, your discussion and where you'd been, but I I have to tell you that I'm dual national Canadian. Oh, I did it. I did, in fact, learn to drive in Canada, so I'm I'm very well aware of the rules of stopping for a pedestrian when they're 300 yards away from you, which doesn't apply in the UK.
Speaker 1:I can tell you that yeah, no, I had to check it. So we went out for dinner with the canadian uh, with the epic board, probably second evening we were there and it was so unusual I had to ask is you know? Is this, is this real? You know? Am I experiencing this? I am expected to stop and cross the road. Yeah, yeah, yeah. If you don't, if you don't cross the road, we'll hate you yeah, you have to say sorry if you don't.
Speaker 3:That's definitely the rule.
Speaker 1:I spent a lot of time with my hand like people listening can't see this with my hand in that kind of like hey, hello. Sort of like raised right, I've been saying thank you for letting me cross the road, or yeah, no, not crossing yeah so we're here to talk about all things upc, particularly on the sort of practical side of it. So I'm going to ask my learned colleague william roberts to um to lead on this one, if that's OK, gwilym.
Speaker 2:I'm very happy, as expected, not a problem, and I'm going to do what we normally do, which is we're going to start at the beginning. So, rachel, can you talk a little bit about how you got into litigation in the first place, your experiences and so on? Where did it all start?
Speaker 3:Where did it all start? Where did it all start? So I, not unlike an awful lot of IP solicitors, particularly on the patent side, have got a science background but discovered fairly early on that the lab was not for me, but do love the science side of things. So when looking at law, very much attracted to IP, and I trained at a big international law firm with a really strong patent litigation team, at a big international law firm with a really strong patent litigation team, and really that's what I've been doing patents and other IP rights for about 20 years now.
Speaker 3:And the UPC because we're here to talk about UPC and kind of what's been happening.
Speaker 3:Obviously we've been watching that for many, many years with the stops and starts, and one of the things that I've always sort of been been part of is pan-European patent litigation strategy and the UK in particular is it very much plays a sort of pivotal role in that and always has, and so you know we were.
Speaker 3:We could see the rules being built, we could see all these tools that you know previously were only available in X country versus Y country coming together in this very exciting toolbox and a kind of mix of civil and common law, obviously because at the time the UK was still very much driving forward the development of the rules and yeah, so it's sort of been a natural progression to now being involved. Now that UPC has launched, being involved in UPC litigation and kind of you know it is, I think we really did hope actually it would be very successful and I think after the first year it has really shown to be very successful and will be. It is a generational change in what European litigation looks like and it is something that everyone, irrespective of whether you know you're going to be involved or not, does need to be aware of because it will impact on patent practice and patent litigation in Europe.
Speaker 2:So, starting, bear in mind that we have an audience from all kinds of different backgrounds, from litigators down through to people who think IP is interesting, want to learn a bit more. Maybe take a quick step back and just kind of talk about the regime before and after the introduction of UPC as a starter, and then we can build up to some of the core strategic stuff.
Speaker 3:Yeah, sure. So I mean it's often quite a shock, particularly for anyone who's outside of Europe. The sort of the status quo before the UPC went live is you go through most people go through the European prosecution as a sort of single process and obviously there's the opposition process separately once it's been granted. But once it's granted it's validated as a bundle. And the way that the system worked previously was, once you had a validated set of patents, any kind of validity infringement issues were dealt with primarily by the national patent courts and that could happen in parallel with ongoing opposition proceedings or, you know, sometimes oppositions might go first and then you'd litigate afterwards. And I think it's quite difficult for people coming into it to. Really it's quite a shock. I think that you know they'll come in and they'll say, ok, well, tell me how this pattern, what might happen in Europe. And of course you've got to break it down and say, well, you know, this could happen in the UK, this could happen in Germany, this could happen in Europe. And of course you've got to break it down and say, well, you know, this could happen in the UK, this could happen in Germany, this could happen in France, and and it would all happen on different time scales and and they would say, bang on a second, you've got, you've got the same underlying law, you've got the European Bank Convention and we'd say, yes, but although although you know it's the same law, there are a lot of areas where obviously the different national courts are not particularly harmonised on issues. You know whether that's doctrine of equivalence, you know the test that they apply for inventive step and, again, also potentially differs depending on which country you're in, from what people would experience, what patentees and people looking to go their way would experience with an opposition, for example. So that's sort of where we are. We've got the basic underlying law but actually people did have to understand that things work differently in different countries depending on what was important.
Speaker 3:The UPC and this is where we hope it will be, you know, sort of three to five years out from the UPC starting, the real rationale behind is it should drive proper harmonisation in terms of a UPC way of doing things. So when someone says kind of, what's going to happen in Europe, you will actually be able to give them hopefully a clearer answer about their prospects of success, whether it's enforcing or defending, obviously there are people, there are countries like the UK that are outside of the UPC's jurisdiction. But what has always happened with the key patent courts, even the national courts, is, although there's no obligation to take on board what a different national court has done, the judges at that level are very respectful of other courts and what they've got to say, and particularly the specialist jurisdictions, and so there should in fact be an influence and we would hopefully drive harmonisation in terms of the big items that are currently different. The other big thing as well and it's a very practical thing is timing was very different in different courts. You had the very fast court, so the UK is fast, germany infringement is fast and the Dutch courts are fast, but other jurisdictions are much slower.
Speaker 3:Or with the bifurcated system in Germany, you know, nullity wasn't an option until any opposition proceedings had happened, and that can leave people in a position where they were waiting several years to get decisions back, and now the very ambitious timetable that's been set in UPC proceedings is 12 months to a first instance trial. Currently that's what's happening and it is a huge difference for many, many jurisdictions. So you know, equally you can also get revoked very quickly if you're a patentee, but you get clarity in a much faster timeframe under the UPC you get clarity in a much faster time frame under the UPC.
Speaker 2:So previously, yeah, you had a European patent and it was validated in six or seven European countries and you wanted to actually stop somebody infringing it. As we all know, you had to go and see them in all those countries and then suddenly, at least for the UPC countries and let's not go into which ones they are, it's mostly important ones, except the UK Now you can take a single action rather than five or six, which is great, and that means, I guess, that it's a very powerful tool in terms of pan-European injunctions. Suddenly, I'm right in thinking that, well, okay, I do know, but basically you can suddenly take a single action and stop infringement across a huge swathe of countries. That's right, isn't it?
Speaker 3:Yeah, that's correct. I mean this is the big stick, this is the big incentive really for patentees coming into the system. And obviously the question that we were looking at for the first year is how willing and what terms will injunctions be granted? And we found very found on. Very early on the Munich local division granted a preliminary injunction on a unitary patent, so it covered all all at the time 17 countries. That was actually overturned on appeal.
Speaker 3:But I think we have just recently, actually in the last couple of weeks got the first preliminary injunction that has been upheld by the UPC's Court of Appeal and we've seen quite a few PI decisions where a PI has been granted. We've also seen real scrutiny of the validity of the patent, the way that the infringement has been framed. So what has come out in the first year is the seriousness with which the UPC courts are taking the assessment of infringement and validity, even though it's not a full proceeding on the merits from a validity point of view, but it's important. And the other big trend that we've seen is kind of some clarity on what the urgency is. So how quickly do you have to get your action up and off to be able to actually be granted a preliminary injunction by the UPC.
Speaker 2:So breaking it down a bit again for the less familiar with bits of law there. So the preliminary injunctions is basically you want to go in very quickly, very early, and get something, get an injunction quickly pending a full decision, as it were. So we've seen those coming out already. So basically you've got your product out there and you're being ripped off and it's causing you massive problems. You can go in fast, which is great. I think that's the kind of a tool that people need the full injunction. Just to clarify you said that a full injunction had been issued but it was overturned at appeal. Was it overturned because legally they can't get full injunctions, or was it overturned because the case didn't merit a full injunction, kind of thing?
Speaker 3:So the case I'm talking about is it was a preliminary injunction case and it went up to the Court of Appeal. So it was granted at first instance, went up to the Court of Appeal and the Court of Appeal effectively disagreed with the first instance course in terms of they felt it was more likely that the patent wasn't going to be held to be valid on a kind of full merits. So you know that was that. But we have seen recently a preliminary injunction that has been granted being upheld by the Court of Appeal.
Speaker 2:Oh, so the courts are happy to give injunctions in the right circumstances. So it's a hugely powerful tool and, to the extent this goes out in the States and we're building an American audience, I think this is something that's obviously of real interest, and we'll get on to the international perspective in a minute. I just want to ask another couple of questions about the UPC and bringing it back a little bit. First of all, as you mentioned, you were previously a UK litigator. Do you want to paint a picture of some of the differences between running litigation in the UK versus running it at the UPC? It's civil versus common law in a sense, isn't it?
Speaker 3:Well, it's interesting you say that. So the unique thing about the UPC setup is the rules are, in fact, a very unique blend of civil and common law, and that was obviously developed when the UK was was much more involved and, although we haven't seen Ireland ratify yet, they obviously are a common law jurisdiction that we hope will come into the UPC. But what we've seen in reality is that the it is currently all civil law jurisdictions that are participating and we've not seen much uptake or appetite to use the common law tools like disclosure, expert evidence, cross-examination, for example, and it has had a much more of a civil law flavour. So that's the way it looks like it's going now. Obviously, that could still change because things are still developing.
Speaker 2:That's interesting because we had that Kevin Mooney on, didn't we?
Speaker 2:We're asking some of the questions because he was hugely instrumental in setting this up in the first place and remained instrumental long after Brexit, brexit, basically because of just how centrally been taught and how highly respected he may still be, highly influential. Actually, I've known him for a little while. One of the questions we have was obviously we have wonderful ambitions for this new hybrid court, as you say, with uk style and continental style principles and maybe unsurprisingly, given that diminished or, yeah, diminished involvement, other than the fact that our EPAs can perform that, it is getting a more continental vibe. A little bugbear of mine is I have a little belief that the European Patent Convention, by the way, have the same thing. If you look at the back end of the UK, see it's got a whole bunch of very British stuff in it that's never got used. Do you think there's a chance that the UK can influence a little bit more andigators who, primarily through the Irish route, are very active?
Speaker 3:actually in the UPC and again sort of picking up on this role that a lot of UK firms have always had, which is sort of being the linchpin for navigating for doing a pan-European strategy. The linchpin for navigating for doing a pan-european strategy. You know that, whether whether actually on paper showing as upc representative, but or or in fact being very instrumental in in how it works with the upc litigation, the uk is having a huge influence. I mean, obviously the the biggest um driver of cases has been in the German courts and so there is currently a very German flavour. But we are seeing Paris and the Hague also, you know, really handing down influential judgments as well. But we have seen pushback on things like cross-examination, for example, use of experts, not sort of discovery in the same way or disclosure that we are used to, but it has been a very rigorous procedure and very fast. So those sort of the speed thing is making a big difference, I think, to what the litigation looks like.
Speaker 2:You mentioned that. Obviously, things on the face of it, things got simpler. Suddenly you can get single um, so you get a single litigate, a single forum and litigate there and get your injunction. For was it 400 million people and all that kind of thing? The reality is it's not quite that simple still, is it? We still have national proceedings, we still have oppositions and, of course, we have the countries outside the UPC but which are part of the European power system, the UK being a key one. So how are you seeing people playing this arbitrage, isn't it? There's a lot of options just at the moment. How are you seeing people play all these different elements to get the right strategy for Europe?
Speaker 3:yeah, you're absolutely right, it's another layer of forum shopping. I didn't say that.
Speaker 3:Well, it's true, because you know that's always the way you approach, kind of what are we going to do? Is you know where's commercially important, where's the activity happening? All of those decisions are into play play. And obviously we've still got european bundles which can be litigated in national courts versus versus unitary patterns which have to be litigated in the upc. Um, so it's added it's currently added a layer of complexity because we are still seeing people choosing, people have opted out, so there's still national litigation but maybe a divisionals in the UPC and that's that's really for very sophisticated players who've got deep pockets.
Speaker 3:And the other thing that we have seen in the first year with the UPC is people trying to see where the boundaries are of the rules. And so you know we've seen huge amount of procedural decisions, appeals on procedural decisions, because people are testing the boundaries. You know what is appropriate, what is going to be the upc way of doing things, and on the substantive law, you know what, what does the upc law look like? And people presenting, you know some people just well, it's going to be like the german. And then other people saying you know it's here's the, here's the dutch way, here's the french way, here's the german way. And then you know, and most people, I guess, would say well, let's pick the way that suits our case the best and the other. The other area of tension as well, particularly on the validity side, is you know what's the role of the epos problem solution approach, because that's done differently in different national courts as well. So all of that in the first couple of years, I think is makes it more complex. Hopefully it will drive harmonization and we will get a UPC way of doing it and then it will become more accessible to those who you know don't have such deep pockets.
Speaker 3:But that said, willem, what what I found quite interesting is is you know there's more medium-sized, medium-sized entities, entities who they've got an issue and they're really frustrated and they want to be able to perhaps stop infringement. And the UK is one of the most expensive jurisdictions and they don't want to pay the million pound plus that you're with the potential cost risk as well if you lose for one jurisdiction. But when you're talking about 17, now 18, versus the relative cost and it can be done on a relatively sort of size the good value it's not cheap but good value for the amount of jurisdiction that you're covering suddenly those companies that wouldn't have been interested before or might have just perhaps done a German litigation now can say well, hang on, for the same price as a German litigation I can get an injunction in 18 countries. So there's different considerations for the smaller companies as well, which again was the Uc was supposed to be sme friendly. Whether it is or not um remains to be seen.
Speaker 3:But. But certainly there's interest in the mid, the mid-size um firms where they wouldn't have necessarily done so before I thank you.
Speaker 2:That was actually. Yeah, I've got lots of questions coming up your, your, your points here. But what? The first one was that sme thing and the upc was built as oh, it's the future for smes. I don't think anybody, I don't think anybody ever believes that. It's really sad. Um, uh, you mentioned deep pockets and we'll get to deep pockets, but there's middle-sized pockets too, which is something very important. I suppose it was. It was built in this way. But I think what I'm hearing is is that, you know, maybe not your kind of you know, your little flower shop might struggle, but somebody with a decent business, with a product in Europe, they don't have to have those super deep pockets to use the UPC. It is fit for purpose at that level.
Speaker 3:Yeah, and there are discounts available in terms of the court fees for SMEs as well. So you know, if you can show that you fall within the definition, you do get quite a substantial discount. And there is also the availability, you know, if you issue and you settle at certain stages you can get some of the kind of upfront court fees back too. So there are some incentives there. Right now it's, I think, quite difficult because it is a bit wild west whilst things are being tested and things settle down. But but you know when, when that, when that works out, I think it will be attractive.
Speaker 3:Um, if the business reason, the commercial reasons, are there to do it, then then it could be a really efficient way of. It won't be as cost effective as an opposition, though I think that's sort of still also a very important part of of and from my point of view I always think of oppositions as another jurisdiction, because it's another really important place. It is a litigation, because it, you know, there's complete knockout, um, so yeah, it's, it's balancing alongside that kind of route.
Speaker 2:I always fond of the wild west analogy. In the end, I mean, I guess the wild West is always policed by a bunch of sheriffs. I do feel that our judges at the UPC they're good. So you know, in the end I'm sure they talk to each other, and so that's good news.
Speaker 1:Just to prove that I'm here and I'm listening, Willem. When we first launched our awareness raising programme around UPC and the role that UK litigators would have in it, President Matt Dixon did, of course, refer to us as guns for hire.
Speaker 2:Honestly, the analogies go on and on.
Speaker 1:I'll be quiet again.
Speaker 3:Matt's right, because one of the big things I think kind of on a practical level is because of the timescales and how much work is involved in these litigations, the size of your team, the depth of your particularly on the technical expertise, how quickly you have to turn things around if you're a defendant, for example, of UK-based European patent attorneys, particularly with the English language really coming to the fore. The technical expertise, the language skills, the knowledge of the law is really useful. So that is something that definitely the UK can sell and you know, and we're used to doing that as a sort of you know, the US comes into the UK quite often. So you know, and currently working with local co-counsel as well, whilst things settle down, you have an uncanny ability to predict my next question, which was the international elements.
Speaker 2:So when I heard some commentary from the US that, given that some US parents will seem to feel that the US is a bit anti-patent at the moment you can't get injunctions, there's all these kind of challenges available at the USPTO and everything that the UPC is being looked at as a potential alternative starting point for kind of a global strategy, is that something you think is? Is that, is that a commonly held thought?
Speaker 3:yeah, no, I think it is. It is very much because of um, the jurisdiction, territorial, the territorial area, the, the value of the market that's being covered. It suddenly looks, not quite at the level of the US, but similar to the US, and what we're seeing is that validity is being very carefully scrutinized. So you do have to have a good case, but then, equally, there is a willingness to grant injunctions, which in the US, preliminary injunctions are tricky, and and also, when you look at the cost of litigation in the UPC versus the cost of litigation in the US, there is a you know it's, it's a lot, a lot less and it's and it's currently a lot, a lot quicker. You know the. If you go into district court litigation or even ITC litigation, itc is minimum 18 months. District court you're looking at years and here we're talking about a really high quality decision on infringement validity within 13, 13 months, 14 months thank you.
Speaker 2:That's kind of it's good to hear that corroborated because it's an exciting development, but I think it does bring I've also heard some potential risks in terms of the the strength of the forum and the attractiveness of it, and they're kind of, you know, a level playing ground, let's say, on validity. There were fears at the outset that it would therefore become a bit of an mpe playground. That would be very attractive to businesses who litigate for their business to come to europe, because it's such a powerful sanction that people are likely more likely to settle instead of giving them money and back up, which is, we know, a huge problem in the states. Is there a risk? Well, are we seeing that risk materializing, that we're going to see more litigation as sport, if you will?
Speaker 3:one. That was a fear. Definitely. That was in the minds of the um committee who were drawing up the rules, and it's one of the reasons why we have cost shifting um for a kind of loser pays principle not not on the same level as as the uk, but on a on a sliding scale. There's, you know, if you lose then you will have to pay some fees and part of that was to deter just just kind of non-practicing entities using it to um using as a big stick to scare people.
Speaker 3:We are seeing, we are, we have seen some activity, activity from the non-practicing entities. Not that much, you know, that's not really been the main part of it. We have seen some settlements in that area. I don't. Yeah, it's hard to know. It's hard to know. What we haven't really seen, or haven't seen visibly, is the role of litigation funders, which obviously is one of the big, big sort of drivers for non-profit entities in the US. We'll see. I think the cost, the cost sanctions will put people off to a degree, unless they think they really do have a good case.
Speaker 2:Which is a good thing, because I'm not surprisingly pro-IP. But it does worry me that there's some areas where it can be gained, and I think not necessarily on policy. So I'm pleased that we've got some provisions in place that block it. I've got one more, lee, and you're back in the game. My friend and I was to ask Rachel, so we talked about the. Upc is a new forum. It's got new law. It's a mix of lots of national laws. There's some British influence and common law influence. You mentioned the problem-solution approach, the EPO's favour and everything. What's your prediction for where the law is going to set up? Is it going to be a completely fresh look at IP law or is it going to be very German, for example, where is it going to sit?
Speaker 3:example, where is it going to sit?
Speaker 3:Well, I, what I my hope, my hope, is that um and I have heard, uh, on various various um sort of panel discussions where the judges have been talking about this particular issue that they take the best of everything because this is the opportunity to do it. You know, even even you know, a german judge, for example, will have some areas of the law where they think actually that's we've not, as a national court, gone the right way on that, for whatever reason, and or, you know, we've seen the Dutch court do this and actually we like that. So my hope is that you know it will be the best practices and I think certainly the judges you mentioned earlier, the judges very much are talking to each other, they're learning from each other. I mentioned we did the first saisie in front of the Paris Circle Division and we know that that was being watched by many, many of the other judges, just to see what that looked like, because, of course, the Paris judges have got the most experience in that area at the national level. Yeah, so I think I, my hope is that it will, it will take the best of things, um, you know, including epo and and across all of the courts that are involved lee you're gonna want me to come in now, but aren't you Come on, we've missed you, you've almost
Speaker 1:exhausted it, gwilym? I wouldn't know. So the sort of things I'm interested in aren't really the practical stuff though, rachel. So it's more your feeling for how things are going, and so I was. Well, whilst we've been talking, I've been looking back at when we did our sort of first piece of awareness raising around this. We introduced the concept of there being sort of seven reasons why uk patent attorneys will be at the forefront of the upc. So first question are uk patent attorneys at the forefront of the upc?
Speaker 3:I.
Speaker 3:Well, I I have to say I to be fair to the germans the germans have done very well thus far, so, um, I think it would be unfair to say that they're not really really driving forward just because of the way where the cases have landed.
Speaker 3:Uk patent attorneys and UK firms have very much been involved in the development of the UPC in the first year. I think we've had a very strong influence on developments so far in cases and you know we've always worked you know the UK profession has always worked in international teams, whether that's within firms or, you know, with co-counsel in the different national courts, and I think that's what we've seen and it's been a very it has been a really exciting time and almost questioning, you know what you know from before and actually, okay, well, do we have to do it like this? Is there another way of doing it? Did the Dutch do this better than we do? Or, you know, actually we really want to push how we see this. That has really been very much part of the conversations that we've been having on cases that we've been having on cases.
Speaker 1:So the other thing that crossed my mind whilst we were talking is the. So we hear in the conversations that we have that maybe the courts aren't so enthusiastic about EPAs as litigators. Is that something you've picked up on or is that just noises coming out of the courts?
Speaker 3:I think I mean. So. If you look at the way the court is set up, it's a very kind of German or Dutch model, which has always been a litigator with a patent attorney and, the way you know, in the past, when we've sort of gone to hearings in the German courts or the Dutch courts, the court will. It's very short hearings. So the judges are like okay, we've read your voluminous pleadings, we are interested in xyz and and, as has always been the case in terms of kind of litigation, when you, you know, before the dutch court, for example, if one of the points is added matter, then it is going to be your epa who is doing that discussion and and you know, if there's a particular technical point. So I I I'm not sure that's the case in terms of as litigators. I think it is. It is a, it's a team sport, litigation is a team sport and what we, what has been really necessary across the litigation so far, is big teams, and I think epas are a very crucial part of that, including at the oral hearings.
Speaker 1:Yeah, I think I'm done grill them. I think those are the only sort of things that crossed my mind while, um, whilst we were talking, I have one more question then of course you do. Of course you do. This isn't your closer, is it?
Speaker 2:no, no, no, no, no, no, no, no. Um what science degree uh cell biotechnology genetics. Genetics and microbiology yes. Squishy things. That's a clever one. Squishy things. I get that. I was obviously hoping you'd say physicist, but I just always say that yeah you always say that.
Speaker 3:No, I went for the soft sciences, Gwilym.
Speaker 2:The squishy sciences yeah.
Speaker 1:Well, gwilym, we're back on 40 minutes because you know, one of my jobs is to sort of keep an eye on the time. So we're back on 40 minutes which is usually a good length of podcast for us. Um so, rachel, we normally finish with some kind of really highbrow intellectual closer.
Speaker 1:No, no, we don't we normally finish with some kind of extraordinarily trivial closer and not. But normally it's my job to do that. But I got a message really early on in the chat from Gwilym saying oh, I've got a closer, don't bother thinking about one. So the way this works is he's going to ask me, which gives you time to think about your answer, you're going to answer, and then we throw it back at Gwilym as if he didn't know it was coming back at him. I've given the game away to Gwilym.
Speaker 2:Maybe about? No, no, don't. By the way, did you have you come across the word kayfabe, the word what kayfabe spell? I think I don't know. Actually, I think it's k-a-y-f-a-b-e, kayfabe. No, so it's a really cool thing that apparently comes from fairgrounds originally and it's a pretense that everybody actively buys into, like the tooth fairy and that kind of thing, oh, okay, and all aspects of wrestling. So this is effectively a kayfabe, it's a kayfabe Okay. Great phrase.
Speaker 1:I know exactly what they mean. The moment you say it, you know what it means. You know I'm Googling that the moment we finish.
Speaker 2:I could be wrong actually this could be the kayfabe I made it up Right, so my closer First it goes to Lee. I haven't actually announced myself in gold, which I thought was true. So at the very beginning we talked about Newfoundland and we talked about Canada and we talked about dual nationality. So, lee, I don't believe you have dual nationality.
Speaker 1:I don't have no.
Speaker 2:If you did, what would your other one? That's quite good, isn't it?
Speaker 1:We've not done this one. That's quite good, isn't it? We've not done this one. That's such a cool question. If we did, what would my other dual nationality be? God blimey. I am sort of semi-stumped. I'm sort of thinking German, because I've always quite liked Germany and despite my sort of really bad attempts to learn the language, that would perhaps hinder me. So maybe I'd have to go somewhere that was English speaking. I love Canada, but that would be like I'm sort of creeping too much with Rachel having dual nationality, wouldn't it? So I probably can't say Canada, new Zealand, I'll go New Zealand, yeah, yeah, yeah, I'll go New Zealand. Kiwi Davis, yeah, good good a feel to it.
Speaker 2:Rachel, if you could have another I assume you've only got dual right if you had a third, what would your third nationality be?
Speaker 3:well, it would be Irish. Actually, I'm in the very annoying situation of going back sort of a generation and a half and pretty much being entirely Irish family, but yet not quite qualifying for the Irish passport post-Brexit. So if I could reclaim my Irish roots I would love to do that. There we go.
Speaker 2:Excellent.
Speaker 1:Oh, there's somebody else in the room. Yeah, go on, then. I forgot you were there. Oh, yes, me Right, sorry, yes, so back at you, back at you.
Speaker 2:Well, I mean, as you know, really I never stopped talking about my fervent Welsh nationalism and I still regret the union.
Speaker 1:But hang on, if you were a fervent Welsh nationalist, you would say there was never a union. Of course.
Speaker 2:Exactly exactly.
Speaker 1:It was an invasion and an occupation.
Speaker 2:So I'm going to declare my existing dual nationality as British and Welsh.
Speaker 1:There you go yeah, I can't do that, because if I declare my Welshness Charlotte, my exec assistant always rips into me hugely saying you're just a fake Welshman Davis, me too, me too that's exactly what I am yeah, so I steered away from that one because it'll get me into trouble if it ever gets heard in the office. Not anyone listens to the podcast in the office group.
Speaker 1:Oh, rachel, thank you so much for coming on and sharing your experiences at the UPC, so this has been recorded just shortly before SEPA Congress. So you're going to do this again for us next week at Congress.
Speaker 3:Yes, with a really exciting panel.
Speaker 1:Yeah, and this will go out after Congress, so we would have had the benefit of your experiences there as well. Really looking forward to that, gwilym. I'll see you on the next one, mate, but I probably need to say to you that, as this is the first one in the series, we've got a new jingle. How exciting is that? It's a jingle that's really personal to you, isn't it?
Speaker 2:Absolutely, it's double exciting. Uh, it's quite cool. The jingle, um, I think I absolutely love it. We have we have a cut from it at the beginning and then, uh, listening in, at the end you'll hear the whole thing. But yeah, well, my son wrote it. He's a very talented musician and he's very good at putting things together and it's super professional and absolutely everything on it is him playing instruments with some fancy music mixing program, except for one bit which is me singing Lee and Gwilym R. So there you go, I'm part of, I'm part of the experience, which I'm proud of.
Speaker 1:I really love it. I love the bit. I love the bit that we've snicked out for the, for the intro, and it's great that we're going to hear the whole thing at the end and um, and we're going to, we're going to do a podcast on music when we're going to talk about the jingle as well, so some piece of point in the series. Hopefully we're going to get little grill.
Speaker 2:I'm on he's not that little.
Speaker 1:He's a lot bigger than big william yeah, they do help grow, you, don't you? Oh, yeah, I found that with mine.
Speaker 2:I should name check him it's billy billy roberts.
Speaker 1:Well done, bill, yeah yeah, yeah, so, yeah, so, be good, be good to get him on when we're talking about music. So, yeah, thanks again, rachel and um, I'll catch you on the next one, but before I go, what should people do if they've enjoyed this podcast? Can you remember?
Speaker 2:go for a swim, yeah, that's the second thing.
Speaker 1:They should do this. All right, sorry, what was?
Speaker 2:it. What was it? I don't you know it.
Speaker 1:Yeah, go for it, leave us a review On the podcasting platform of their choice, because you know that's how people find new podcasts is they look at reviews and hopefully we'll grow the audience that way.
Speaker 2:Actually, if you just leave us a review, whatever you're reviewing anywhere, can you also add on? Although it wasn't very good, I recommend you listen to Two IPs in a Pod.
Speaker 1:Yeah, yeah, on other people's podcast reviews. Yeah, leave it on other people's. So I'm going to go on the rest is history immediately after this and leave a review about Two IPs in a Pod.
Speaker 2:Let's go viral. That's how you do it. Let's work it. Thanks both.
Speaker 3:Thank you. Bye guitar solo, outro Music.