In the first months of its operation, data from the Unified Patent Court shows a concerning trend: the number of counterclaims for revocation exceeds the number of infringement actions filed. This unexpected twist challenges the assumption that the unitary approach would fully integrate the German and unified systems, suggesting that the initial expectations might have overlooked significant strategic decisions from defendants. It raises questions about how this will reshape litigation dynamics moving forward.
The premise of requiring a counterclaim for revocation alongside infringement claims was meant to streamline proceedings and ensure a more comprehensive examination of patent validity. However, the emerging 'counterclaim gap' indicates that defendants might be more inclined to challenge validity upfront, potentially altering how plaintiffs prepare and structure their infringement cases. This behavior signals a shift in litigation strategy that could have long-term implications for patent enforcement in Europe.
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