Paul England and Scott Parker are both IP specialists in the London office of Simmons and Simmons.
Despite the reservations held by many the Unified Patent Litigation System (UPLS)—the Unitary Patent (UP) and the Unified Patent Court (UPC)—may be implemented as early as 2014. Once the UPLS is in operation it will slowly start generating ‘unified’ patent case law through the decisions of its Court of Appeal.
These decisions will be binding on the users of the UPLS, and it is doubtful that national courts hearing opted-out patent disputes will wish to ignore them. However, at the moment, despite the efforts of judges in the European national courts, particularly Germany, the Netherlands and England and Wales, there are some clear differences in approach to the interpretation of patent law. This is important because, where there are differences, the UPC judges will have to make a decision about which approach to adopt.
One area of patent law where there are noticeable differences is between the English courts and the EPO Boards of Appeal approaches to obviousness. In Actavis UK Limited v Novartis, Jacob LJ points out three particular limitations on the problem-solution approach (PSA) of the EPO. However, there are similarities between the PSA and the obvious-to-try test that has gained dominance in the English courts. The obvious-to-try approach has its own drawbacks. The advent of the UPC is therefore an opportunity to diversify how obviousness is treated across Europe by adopting the flexibility of a truly multi-factorial approach to obviousness.