Bifurcation and the UPC – comments welcome!

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Bifurcation and the UPC – comments welcome!

The possibility for judges to separate infringement and validity is one of the most controversial aspects of the proposed Unified Patent Court. What are your views?

upc-blog-150.jpg

Last month we published an article by Gottfried Schüll and Arwed Burrichter of Cohausz & Florack in Düsseldorf, Germany in which they argued that bifurcation – the German-style practice of separating the infringement and validity hearings of a patent dispute – should be welcomed.

“The UPC will make use of the bifurcation system, which makes perfectly good sense and is something that should be embraced and not feared, as it will provide clearer and quicker results,” they write.

At my invitation, Adam Cooke of DLA Piper in the UK has written a response, which addresses why some people have concerns about bifurcation. UK practitioners are typically sceptical about bifurcation, but Cooke argues that the UPC Rules take a balanced approach.

However he adds that the Rules could be further refined “to ensure that the central division's decision on revocation is actually issued before the regional/local division's decision on infringement, and/or that an injunction should not be enforced until after the decision on validity or unless the patentee has provided suitable security”.

We’ve temporarily opened up both articles so that subscribers and non-subscribers can read them. We’d also welcome your comments, which you can post below.

The articles will be published in our March issue, along with a selection of any comments we receive on this blog, on LinkedIn or via Twitter by February 20.

more from across site and SHARED ros bottom lb

More from across our site

Partners at Foley Hoag examine how recent CJEU jurisprudence may serve as a catalyst for recalibrating US judicial reluctance to entertain foreign patent claims
International law firms have high hopes for their IP practices in Saudi Arabia, with many opening offices, but recruiting and retaining talent in the Kingdom presents unique challenges
Patrick Ogola joins us for our ‘Five minutes with’ series to discuss helping African entrepreneurs on the global stage, and explains why young lawyers should speak up
Heli Pihlajamaa, the EPO’s principal director for patent law and procedures, joins us to take stock of the unitary patent following its second anniversary
Kelly Thompson, chair of South African firm Adams & Adams, discusses self-belief, self-doubt, and the importance of saying yes
The renowned food brands were represented by a host of lawyers, including members of the firms’ IP teams
Partners at Bird & Bird and Taylor Wessing discuss how Saudi Arabia offers unique opportunities for firms dealing in IP and tech
Attorneys explain why there are early signs that the US Supreme Court could rule in favour of ISP Cox in a copyright dispute
A swathe of UPC-related hires suggests firms are taking the forum seriously, as questions over the transitional stage begin
A win for Nintendo in China and King & Spalding hiring a prominent patent litigator were also among the top talking points
Gift this article