UPC benchmarking study. Reality dawns

Transcription

1 UPC benchmarking study Reality dawns

2 2 UPC benchmarking study Reality dawns 2016 Take the politics out of setting up the system and realise that the impact on the competitiveness of IP on the EU-market versus U.S., China, etc. is immense, both positively and negatively A European Head of Global IP Strategy Allen & Overy LLP 2016

3 3 Contents Time to get real are you ready for a 2017 launch? 4 The UPC: European attitudes 6 Two years on: the survey results 8 Will the UPC benefit your company? 9 How prepared are you? 10 What makes it difficult to prepare? 11 Are senior management clear about the implications? 12 What s your approach to the UPC? 14 Which patents are you leaving in... and why? 16 What patents are you opting out... and why? 18 What patents are you undecided on... and why? 20 How clear is the opting out and opting back in process? 22 Are UPC costs appropriate? 24 What are you most uncertain about? 26 How will you handle future filings? 27 Brexit: Final roadblock or last straw? 28 Methodology 30

4 4 UPC benchmarking study Reality dawns 2016 Time to get real are you ready for a 2017 launch? Debate over Europe s unitary patent system and court (UPC) has been going on for so many years, it is hard to believe that its launch is just around the corner The big decisions on costs, venues and processes have been made, judges are currently being selected and ratifications are going according to plan. The final roadblock is Britain s referendum on leaving the EU, to be held on 23 June ironic, since the UK has been a major advocate of the unified patent system and UK companies have abandoned their initial scepticism to become its greatest supporters, according to our new survey. If the British vote to leave, it would at the very least delay the start of the UPC since arrangements would need to be reconfigured (see page 28). If they vote to stay, as polls now suggest, the UPC will kick into action in early Our survey shows that many companies have engaged deeply with the implications of the UPC over the past two years. While just half of companies expect the new unitary system to benefit their business down from three-quarters in 2014 their reasoning shows that there has been a shift away from blanket, black and white views of the UPC. Their approach now is considerably more nuanced and mature, designed to meet business needs and protect existing patents, while ensuring that companies play a part in shaping the new system. The findings also suggest that the better-prepared companies are broadly happy with the compromises that have been reached on controversial issues such as costs, and that they are relatively relaxed about how the UPC will tackle challenges such as non-practising entities trying to play the system. But not all companies are ready to face the future. A third of respondents especially those with small and medium-sized portfolios say they have not moved beyond the early stages of preparation, and a similar proportion claim it s still a long way off. They are wrong. Although latecomers do have the easy alternative of initially opting all their patents out at no cost until they can make a final decision, they will find that the UPC system develops its own dynamics quickly, making light of the seven-year transition period when unitary, national and European patents run in parallel. 51% of businesses think the UPC will benefit them Allen & Overy LLP 2016

5 5 Those dynamics will be shaped by the complexity of companies strategies that we see in the survey. Sectors like life sciences/pharmaceuticals, which depend on a few crown jewel patents for the bulk of their business revenues, look set largely to opt these few patents out of the UPC system, litigating them in their heritage systems, while at the same time making sure that they can play an active role in shaping the UPC system with other patents. Industrial companies and those in the technology, media and telecoms (TMT) field, on the other hand, are more likely to leave a sizeable number of important patent suites in the UPC system where they can test the viability of pan-european injunctions and ensure that the system develops with their input. Overall, companies are more likely to leave patents in. Once a body of solid case law starts to emerge, companies will start to review their decisions. In all likelihood, within a few years time, the market will split: large companies will gravitate towards using unitary patents as a matter of course, leaving national patents for small and medium-sized companies. By the end of the transition period, barring a disaster, the current European patent will become a mere footnote. Once the Brexit referendum is over, it will be the last chance for those companies that have waited for the UPC to become reality to make decisions based on their own business needs, rather than be forced to react to the actions of their peers and competitors. The UPC represents the biggest change in the European patent system in decades and it is going to affect everybody. It s worth entering that new era with a clear strategic view that will make it simpler to both shape and adjust to the new reality.

6 6 UPC benchmarking study Reality dawns 2016 The UPC: European attitudes We assessed the views of companies across Europe towards the business impact of the Unified Patent Court Five key insights 1 Benefits but answers needed 80 % 36 % 68 % Getting clear answers to questions on how the system will work in practice remains the biggest challenge for business, according to 68% of respondents. Businesses with larger patent portfolios are more likely to believe the UPC will benefit their business than those companies with smaller portfolios. UPC needs to help educate business, in particular SMEs, on how the system will work. 2 Time is running out Risk of being blocked from all European markets (centrally revoked) creating major uncertainty for business, according to 43% of respondents. 44 % 53 % 63 % A real concern that one-third (34%) have not moved past the early stages of preparation. With just one year to go businesses with large patent portfolios are still undecided on what to do with 44% of their portfolio, rising to 53% for smaller portfolio companies and climbing to 63% for mid-sized portfolio companies. Allen & Overy LLP 2016

7 7 3 Sentiment reversal UK-based companies are now the UPC s biggest supporters, after being the most sceptical in Eggs in different baskets The spectre of Brexit 27 % The crown jewel strategy has changed and of those who intend to leave patents in the UPC, fewer will be leaving their most valuable ones in down to 27% from 82% in % One in three companies think the UK s absence from the UPC system would be a problem in terms of efficiency and costs. are opting out to design enforcement strategies by jurisdiction, and avoid putting all their eggs in one basket.

8 8 UPC benchmarking study Reality dawns 2016 THE SURVEY RESULTS Three important findings emerge from our new survey: 1. Companies have come a long way over the past two years and many are ready for the launch next year. They have put people and processes in place and have started working out what the unitary patent could mean for their business and how best to respond. The more prepared they are, the more they see the benefits. 2. Responses have matured. Companies are taking a more sophisticated and differentiated view of how to handle their portfolios, thinking carefully and strategically through which patents to leave in the system and which to opt out. 3. Some companies will benefit more than others. Those with large patent portfolios that are validated in many jurisdictions know that they will benefit most from the UPC and will use the system intensively companies with fewer patents or ones that require fewer validations have less to gain and many will continue to use national filings or the existing European patent. Allen & Overy LLP 2016

9 9 Will the UPC benefit your company? 2014 We think so, but we re not entirely sure 31% 43% 14% 1 3% 8% 2016v2014 comparison % 30% 24% 11% 5% 10% 51% Total yes / probably Yes Probably Probably not No Don t know Too early to tell % 43% 14% 1 3% 8% 74% Total yes / probably Yes Probably Probably not No Don t know Too early to tell % 30% 24% 11% 5% 10% Question asked: Do you think the unitary patent and the Unified Patent Court will benefit your company? As companies have started to prepare for the introduction of unitary patents and the UPC, there has been a dramatic shift in their expectations and overall a less rosy view of the impact on business. Just over half (51%) now expect it will be positive for their firm down from three-quarters (74%) two years ago. Significantly, however, those categories most concerned about the impact of the UPC in 2014 are now the most bullish 80% of companies with large patent portfolios say it will probably benefit them (twice as many as in 2014) and UK-based companies have shifted from being the most skeptical in Europe to become the UPC s biggest supporters by far, with three-quarters (76%) believing it will bring them benefits, compared to less than a quarter in France (22%). While that is ironic given that the Brexit referendum on 23 June is the final roadblock to the launching of the UPC system (see page 28), the explanation is less national than structural. The UK corporate structure includes more companies with large patent portfolios than the French, and the sample also has twice as many companies that validate their patents in more than six countries. Similarly, German skepticism stems largely from medium-sized industrial companies with smallish portfolios.

10 10 UPC benchmarking study Reality dawns 2016 How prepared are you? We re working on it We have undertaken a portfolio audit to identify crown jewel patents and secondary patents within our portfolio We have determined whether we should obtain the new unitary patents or continue obtaining classic European patents* 34% Not beyond early stages We have identified which patents to opt-out of the regime** We are only at the early stages of preparing None of the above 9% 9% 5% 5% 40% 40% 37% 37% 38% 38% 42% 42% 23% 23% 39% 39% 26% 26% 32% 32% 2% 2% 1% 1% Other *2013 wording: We have determined whether we should file new unitary patents subject to the UPC or continue filing classic European patents. **2013 wording: We have identified which patents to opt-in and which to opt-out of the regime. Question asked: What work, if any, has your business undertaken so far in preparation for the arrival of the UPC? Preparations for the UPC remain mixed and around a third (34%) of respondents say they have not moved beyond the early stages of preparing for the introduction of unitary patents only slightly higher than in Some 40% have audited their portfolios to identify the crown jewels and secondary patents and 38% have reached a decision over whether to file new unitary patents or to continue obtaining classic European patents. Less than a quarter (23%), however, have identified which patents to opt out of the regime a considerable drop from two years ago, suggesting a shift in perceptions on the best strategic approach to unitary patents. As in 2014, the level of preparation broadly echoes the level of benefits that firms expect to receive from the UPC, as well as their level of concern about key areas. Companies with large patent portfolios and companies with European headquarters in the UK now regard themselves as relatively advanced in their preparations, compared to others a significant shift from two years ago when both these categories felt themselves to be lightly prepared. Dutch and German companies are least prepared. French companies have done the most work on their portfolio audits, but fewer have made key decisions on how to handle specific patents. Companies in the TMT sector have made the most progress in preparing for the UPC and have the highest share (32%) of respondents who are clear that it will bring benefits to them. Nevertheless, fewer overall expect to see benefits than two years ago, possibly reflecting the complexities of their often wide-ranging patent portfolios. Allen & Overy LLP 2016

11 11 What makes it difficult to prepare? Finding the right expertise to understand how it will actually impact us Getting clear answers to questions we have regarding how the system will work in practice and its various implications for our business, to help inform our decision making Ensuring we have the right level of expertise and understanding of the new system within the team to undertake the analysis required to inform our decision making Keeping up with and monitoring developments and their implications for our decision making Getting enough resource internally to properly audit and review our patent portfolio Getting management sufficiently engaged with this issue and realising its importance for our business 40% 42% 46% 68% 71% 68% 59% 56% 57% 68% 2% 3% Other Question asked: What are your biggest challenges in preparing for the UPC? Preparing for the UPC still presents companies with multiple challenges, but responses show that many have made important advances over the past two years. More than two-thirds (68%) still say it is difficult to get clear answers on how the system will operate and potential implications. But companies are now significantly less likely to cite internal resources as a constraint less than half (46%) say this is a challenge, compared to 68% in The bigger internal challenge now, noted by 68% of respondents, is getting the right level of expertise on their team. Companies with large patent portfolios have mostly managed to handle the internal challenges, but 60% also say it remains difficult to get clear answers to their questions, suggesting the UPC still has a way to go in improving its communications to businesses. There is some evidence across the survey of a squeezed middle larger companies are well prepared, companies with a small number of patents have less to worry about, while those in the middle are often floundering.

12 12 UPC benchmarking study Reality dawns 2016 Are senior management clear about the implications? They are starting to grasp them There is some awareness but they have not fully grasped the implications this change could have for our business Senior management are fully engaged on this issue and appreciate the potential implications This is not a strategic priority for our management as it will have little impact on our business There is insufficient awareness and understanding of the implications for our business 13% 19% 10% 16% 26% 29% 43% 39% Other 2% Don t know 2% 1% Question asked: Which one of the following best reflects whether there is a sufficient level of awareness at a senior level in your business about the UPC, and in particular the implications for your business of opting patents out or leaving them in the UPC system? A quarter (26%) of respondent companies report that managers are fully engaged and understand the implications of decisions to be taken around the UPC that is twice as many as two years ago. Among UK and Dutch companies, that share rises to around a third, while in France it sinks to just 15%, echoing perceptions of the benefits of the UPC. The level of engagement also tends to correspond directly to the share of companies that say the UPC is not a strategic priority because it will have little impact. Over a quarter of French companies view it as unimportant, a much higher share than elsewhere and probably a result of more companies having small patent portfolios. Still, over half of French and German companies, mostly industrial companies, recognise that there is some awareness about the business implications of the UPC but this is not fully grasped at senior levels. In 2014, companies with medium-sized patent portfolios were the most aware and engaged, but these companies now show a very mixed picture, including a relatively high percentage of respondents (15% compared to 10% overall) who are worried that there is no real awareness of the implications of the UPC. Companies with large portfolios are now the most aware and engaged. Allen & Overy LLP 2016

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14 14 UPC benchmarking study Reality dawns 2016 What s your approach to the UPC? Differentiated, but we are leaning more towards leaving patents in Average Portfolio 18% Average % of patents opting out 29% Average % of patents leaving in 53% Average % of patents undecided Question asked: Roughly what per cent of your patent portfolio have you 1) decided to leave in, 2) decided to opt out or 3) do you remain undecided about? Most respondents remain undecided about how to handle a large number of their patents. On average, no decision has been made on over half (53%) of the patent portfolio but that marks an improvement on two years ago when the same share was 68%. Where a decision has been made, the number of those leaving patents in the UPC system remains higher than those opting out, but the gap is smaller than it was two years ago. At that time, 85% thought they would probably end up not opting any patents out at all but that share has fallen to 53% as companies have analysed their portfolios and considered the implications for different kinds of patents. Just 6% have already decided to leave their entire patent portfolio in the UPC system, while only 4% have chosen to opt out entirely. Two years ago, there was a clear correlation between companies leaving patents in the UPC system and their perception of benefits from unitary patents. That correlation has now broken down, suggesting companies are starting to take a more sophisticated and differentiated approach, not only hedging risks but also considering strategic benefits across the portfolio. Those companies that are still very indecisive are, however, more worried about the impact of the UPC on their business. Those groups with the highest share of undecided patents French companies, the TMT sector, smaller companies are also among the least enthusiastic about the benefits of the system for them. Allen & Overy LLP 2016

15 15 Banded % answering within each range Leave in 53% 7% 14% 10% 11% 6% Undecided 34% 9% 4% 7% 3% 43% Opting out 53% 18% 20% 2 3% 4% 0% 1-25% 26-50% 51-75% 76-99% 100%

16 16 UPC benchmarking study Reality dawns 2016 Which patents are you leaving in... We re hedging our bets Value of leave in patents All opting in any of their patents. Base: (n=77) 50% A mix of patents of varying value 27% Among our most valuable patents (crown jewels) 23% Among our least valuable patents (secondary) Question asked: For those patents you intend to leave in, are they 1) your most valuable patents, 2) your least valuable patents or 3) a mix of patents of varying value? Reasons for leaving in All opting in any of their patents. Base: (n=72) We are unsure whether we may need to enforce these patents We do not anticipate a need to enforce these patents We anticipate the need to enforce these patents 34% 30% 36% Question asked: For those patents you intend to opt in, was it because: 1) We are unsure whether we may need to enforce these patents, 2) We do not anticipate a need to enforce these patents, 3) We anticipate the need to enforce these patents? Allen & Overy LLP 2016

17 17...and why? All opting in any of their patents. Base: (n=77) It will be cheaper to enforce patents on a pan-european basis We believe we may be able to obtain injunctions (potentially pan-european) more easily We intend to leave a number of patents in the UPC system in order to help shape the system by participating in it from the start It will provide greater legal certainty for our patents on a pan-european basis We want to leave a small number of patents in the UPC system in order to test the system and gain a working understanding of it before committing to it fully The process of managing our patent portfolio across Europe will be far more efficient We perceive the risk of opting-out to be too high for us as a business We believe we will be able to achieve a higher level of damages under the UPC 49% 45% 44% 44% 42% 38% 37% 32% Other 3% Question asked: What are the main reasons that your business intends to leave in some or all of its patents? Further proof of companies taking a sophisticated business approach towards the UPC is how they decide which patents to leave in the system. Two years ago, the strategy appeared clear 82% of respondents said they would leave the most valuable patents in the UPC system with the strong expectation they would have to be enforced. Today, that share has dropped to just 27% and half of the companies (50%) are looking to leave a mix of patents of varying values in the system. There is a roughly equal mix of patents that companies think may have to be enforced and ones where that is unlikely. When asked why they are leaving these patents in, respondents are hedging their bets and trying to shape the new system in a way that will suit them. Almost half of companies say it could be cheaper, easier and more certain to get pan-european injunctions through the UPC suggesting there is a level of confidence that the court will function well once it becomes reality. A similar share say they are anxious to leave patents in the system to help shape case law from the start, while testing it and gaining a better understanding of the system internally. These responses compare starkly to those received in 2014, where those who opted to stay in the UPC had strong expectations of higher legal certainty, greater efficiency and the potential to achieve a higher level of damages a perspective that has weakened as respondents have learned to better understand the system.

18 18 UPC benchmarking study Reality dawns 2016 What patents are you opting out... A mix, but a few more of those we fear we may have to enforce Value of opted-out patents All opting out on any patents. Base: (n=77) 37% A mix of patents of varying value 31% Among our most valuable patents (crown jewels) 32% Among our least valuable patents (secondary) Question asked: For those patents you intend to opt-out, are they 1) your most valuable patents, 2) your least valuable patents or 3) a mix of patents of varying value? Reasons for opting out on patents All opting out on any patents. Base: (n=77) We are unsure whether we may need to enforce these patents We do not anticipate a need to enforce these patents We anticipate the need to enforce these patents 20% 37% 43% Question asked: For those patents you intend to opt out, is it because: 1) We are unsure whether we may need to enforce these patents, 2) We do not anticipate a need to enforce these patents, 3) We anticipate the need to enforce these patents? Allen & Overy LLP 2016

19 19...and why? All opting out on any patents. Base: (n=77) We want to retain the possibility to design enforcement strategies jurisdiction by jurisdiction and don t want to put all our eggs in one basket Concerns over the quality of judgements from the new courts in the UPC We have confidence in the current national patent enforcement systems Uncertainty over how the system will work in practice Not enough jurisdictions have signed up We do not validate patents in enough jurisdictions to warrant participating in the UPC system Potential increased cost for litigating under the new system It is sufficient for us to enforce a patent in one key jurisdiction in order to resolve an infringement issue Concerns over the ability of litigants to game the system Concerns over bifurcation 46% 40% 39% 33% 29% 29% 27% 24% 24% 23% Other 7% Question asked: What are the main reasons that your business intends to opt out some or all of its patents from the UPC? As for the decision to leave patents in, companies were roughly broken down into thirds for opting out crown jewels, secondary patents and creating a mix. Companies are, however, tending more towards opting out those patents that they anticipate having to enforce. The main reason (46%) for opting out is the desire to design enforcement strategies by jurisdiction and avoid putting all eggs in one basket. But companies also reveal doubts about the quality of judgements from the new UPC courts (40%) and, conversely, confidence in the current national systems. The system needs to be tested before companies are willing to risk more.

20 20 UPC benchmarking study Reality dawns 2016 What patents are you undecided on... Lack of clarity on processes and costs Value of undecided patents All undecided on any patents. Base: (n=95) 10% Among our most valuable patents (crown jewels) 24% Among our least valuable patents (secondary) 66% A mix of patents of varying value Question asked: For those patents you are still undecided on, are they 1) your most valuable patents, 2) your least valuable patents or 3) a mix of patents of varying value? Reasons for being undecided on patents All undecided on any patents. Base: (n=95) We are unsure whether we may need to enforce these patents We do not anticipate a need to enforce these patents We anticipate the need to enforce these patents 18% 32% 49% Question asked: For those patents you are still undecided on, is this because: 1) We are unsure whether we may need to enforce these patents, 2) We do not anticipate a need to enforce these patents, 3) We anticipate the need to enforce these patents? Allen & Overy LLP 2016

21 21...and why? All undecided on any patents base: (n=95) Lack of clarity on how the UPC will work in practice i.e. we are still waiting for detail in a number of areas 53% We are not yet clear on the costs for us We are still in the process of conducting our portfolio audit It s still a long way off Lack of resource internally We have not been able to get senior management to engage sufficiently on the subject to make a decision 30% 28% 27% 45% 50% Other 7% Question asked: What are the main reasons that your business is still undecided about leaving some or all of its patents in or opting them out? In 2014, companies were largely undecided about secondary patents, with 87% saying they still had to make a decision. That share has dropped to just 24%, but two-thirds (66%) of companies say they are still working out a mixed bag of patents to leave in or opt out. Digging deeper into the lack of decision-making, many people are still worried about the lack of clarity on processes. Around half (53%) say they are waiting for more detail on how the UPC will work in practice and 50% say that the costs remain unclear to them. A large chunk (45%) are still working on their portfolio audit. Internal obstacles are no longer the big problem for most. Only slightly more than a quarter of respondents still cite lack of senior management engagement or internal resources for their indecision and only 30% claim the UPC is still a long way off.

22 22 UPC benchmarking study Reality dawns 2016 How clear is the opting out and opting back in process? We re starting to understand it clearly now 24% 12% We are yet to finish analysing the rules in detail 4% Not clear at all 2016 Very clear 72% Total very clear / somewhat clear 60% Somewhat clear Question asked: How clear do you feel the process is for opting out and withdrawing the opt-out if you wish to in the future? For example, do you have clarity on when you can and cannot do so? Some three-quarters (72%) of respondents say they are largely clear about how the system functions. Although not much higher than in 2014, there are far fewer companies struggling in the dark just 4% say they don t understand it, compared to 21% two years ago. A further 24% are now in the middle of analysing the rules in detail. This is further evidence that companies are focused on working out how the UPC system functions and what it means for them. Again, there is a correlation between lack of clarity and the perception that the UPC will not be beneficial. French companies, the TMT sector and companies with small patent portfolios are the least clear about how the UPC system works. In contrast, 87% of UK companies and 91% of companies with large portfolios feel they are very or somewhat clear. Allen & Overy LLP 2016

23 23 10% Very clear 11% We are yet to finish analysing the rules in detail 21% Not clear at all % Somewhat clear

24 24 UPC benchmarking study Reality dawns 2016 Are UPC costs appropriate? The fees are about right; the cap is controversial Level of unitary patent renewal fees 18% Too high 1% Don t know 76% About right 5% Too low Question asked: How do you feel about the level of unitary patent renewal fees? Since our last survey, when costs were a major source of uncertainty, the UPC has published its fee structure. It appears to have hit the right compromise. A surprisingly high three-quarters (76%) of respondents feel that unitary patent renewal fees are about right, and that perception holds across the board. There are diverging views on the cap on recoverable legal fees Dutch companies feel it is too high (29%) along with those in the TMT sector (30%), while UK companies, used to higher caps, see it as rather low but few respondents are concerned that the cap may be insufficiently high to hold back litigation from non-practising entities. Allen & Overy LLP 2016

25 25 Cap on recoverable legal fees 38% Too high 52% About right 10% Too low Question asked: Caps on recoverable legal fees will apply in the UPC. For claims greater than EUR50 million this cap will normally be EUR2 million. What best describes your view of this cap?

26 26 UPC benchmarking study Reality dawns 2016 What are you most uncertain about? We all have slightly different worries Our patents may be centrally revoked The costs of using the system Whether the Court will bifurcate and grant injunctions before validity has been decided The Court s approach to final injunctions The Court s approach to damages awards The Court will be too lenient on our competitors patents The Court will not grant interim injunctions when we need them Our competitors will be able to obtain interim injunctions too readily Concern over incentives for NPEs to litigate 43% 34% 43% 33% 34% 27% 33% 26% 27% 22% 26% 21% 22% 20% 21% 15% 20% 15% Other 8% 8% Question asked: Which of the following do you see as sources of major uncertainty within the system? Please select up to three Respondents cite many different concerns around the UPC system, but no single one is of equal concern to all types of respondents. The top worry by far (43%) is that patents might be centrally revoked but life sciences companies are not particularly concerned, and neither are companies in Germany and France, nor companies with large patent portfolios. This is a major concern of the TMT sector, UK and Dutch companies and firms with small portfolios. This broad range of different uncertainties is even more pronounced for other areas. Over half of German companies are worried about the high costs of using the system, and smaller companies are concerned too for the others this is just one issue among many. The same group has big worries around bifurcation, but the others are less urgently concerned. As the UPC starts to become reality, it is clear that each company needs to decide on the implications for its specific business. Allen & Overy LLP 2016

27 27 How will you handle future filings? Unitary patents will be dominant, but by no means the only ones Unitary patents 18% 29% 29% 8% 16% Classic European patents 17% 37% 25% 3% 17% National filings 19% 47% 15% 4% 15% Questions asked: We expect Unitary patents to make up: We expect classic European patents with national designations to make up: We expect national filings to make up: None of our future filings The minority of our future filings The majority of our future filings All of our future filings Don t know The approach is no longer black and white. Two years ago, more than half (55%) of respondents expected unitary patents to make up all or most of their future filings, with just 4% saying they would not use them at all. Two years on, companies are taking a more balanced view, hedging their bets and looking at a mix of different types of patents, depending on strategic and tactical needs. Just 37% say they expect most or all of their patent filings to be part of the UPC system, while a sizeable 18% are not expecting to file to the UPC at all. Most respondents expect to continue using classic European Patents and national filings alongside the UPC. Some 28% expect to use European Patents for most or all of their future filings and 19% intend to rely predominantly on national filings. As with existing patents, the expected take-up rate for new filings largely hinges on whether firms expect to benefit from the UPC. UK and Dutch companies, those with larger portfolios and in the life sciences sector are much more likely to see a major role for unitary patents. Companies located in France and Germany are significantly more skeptical, with around two-thirds in each expecting to file few or no unitary patents. Again, this has to be seen in context, with a high number of companies in these countries having a small or medium-sized patent portfolio.

28 28 UPC benchmarking study Reality dawns 2016 Brexit: Final roadblock or last straw? If the polls are correct, the British referendum on 23 June would just be the final bump on the long road to launching the UPC. But what would happen if the UK opts to leave the EU? Would the unitary patent system go ahead as planned or disappear under a pile of new political priorities? A leave vote would definitely delay the introduction of the UPC. As a key driver of the unitary patent system, the UK plays an important role in its structures. London was selected as the location for one of the three branches of the court and is responsible for life sciences a key area for the new system. These responsibilities would need to be reassigned if the UK left the EU, but there would be no shortage of offers. Munich would like to add life sciences to its responsibilities, the Netherlands would like to have a court as would Italy, which is starting to show more support for the UPC. Another key area that the UPC might have to address is costs. While the unitary patent would still be an advance on the current setup, losing such a key market as the UK would weaken its efficiency many companies would still have to validate patents in parallel in the UK. There might be pressure to recognise that shift by reducing fees. Almost half of our survey respondents said the UK s exit would make them rethink the proportion of European patents they would opt out of the UPC system and the share of unitary patents they would file, but less than a third thought it would have detrimental consequences for their business. UK respondents were among the most relaxed. As large global players with significant patent portfolios, many companies will end up operating within the system whether the country is part of the UPC or not. A UK exit would undoubtedly unleash a political crisis within the EU, but the UPC has developed a commercial momentum of its own. If there is sufficient will to solve the practical issues, the UPC could still be launched in A UP/UPC system without the UK will reduce the advantages of having the system, simply because of the lesser coverage A European IP Strategy Officer Allen & Overy LLP 2016

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30 30 UPC benchmarking study Reality dawns 2016 Methodology YouGov surveyed 151 respondents during 11 April-12 May 2016, 27 respondents completed the survey online, 124 via telephone. Weighting has been applied to 2016 data to better reflect the spread of sample in the previous 2014 wave. Overall results are based on 151 respondents, which is a sound base for research of this nature amongst a senior audience, highly expert in a particular area. Allen & Overy LLP 2016

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32 GLOBAL PRESENCE Allen & Overy is an international legal practice with approximately 5,200 people, including some 530 partners, working in 44 offices worldwide. Allen & Overy LLP or an affiliated undertaking has an office in each of: Abu Dhabi Amsterdam Bucharest (associated office) Budapest Ho Chi Minh City Hong Kong Moscow Munich Seoul Shanghai Antwerp Casablanca Istanbul New York Singapore Bangkok Barcelona Doha Dubai Jakarta (associated office) Johannesburg Paris Perth Sydney Tokyo Beijing Düsseldorf London Prague Warsaw Belfast Bratislava Frankfurt Hamburg Luxembourg Madrid Riyadh (cooperation office) Rome Washington, D.C. Yangon Brussels Hanoi Milan São Paulo Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP s affiliated undertakings. Allen & Overy LLP 2016 CS1605_CDD-45225_ADD