Managing IP Awards interview: Tilman Müller-Stoy

Please tell us more about your firm.

Bardehle Pagenberg is a leading independent European IP-only law firm with about 100 attorneys-at-law, as well as European, German, French, and Spanish patent attorneys focusing on IP litigation, IP prosecution, IP counselling, and IP strategy, with offices in Germany, France, and Spain. By way of example, one of our core strengths is patent litigation. Each year, we are handling more than 800 adversarial patent disputes in parallel in different stages before all relevant courts and patent offices, including infringement, nullity, opposition, entitlement proceedings, as well as damages and licensing disputes, often involving SEPs and FRAND issues.

How would you describe Bardehle Pagenberg’s strategy in the patents space, and how has this changed over the past few years?

In the last years the new European Unified Patent Court [UPC] and unitary patent were (and still are) front and centre. We had to train ourselves, as well as our clients, to be ready to actually use (and not only watch) the system in a seamless, strategic way as pioneers. Further, we are actively looking into AI-assisted tools to make our processes and workstreams even more efficient, while continuing to get the current workload done without disruption. It has been challenging times and the whole team worked extremely hard, for which I am utmost grateful.

What do you consider the biggest successes of Bardehle Pagenberg’s recent work in this area, and how did you achieve it? Are there any particular cases you would like to note?

The biggest success clearly is that we could establish our patent litigation team as the leading team at the UPC, being constantly involved in about a third of all UPC cases, representing plaintiffs and defendants alike in now more than 140 UPC proceedings. I am hesitant to single out individual cases as most, if not all, of our UPC cases are hugely important, complex, and high value in nature. That said, we had many ‘firsts’, like the very first cases filed, the very first substantive hearings and decisions at various local and central divisions, as well as at the Court of Appeals. We will certainly always remember those cases.

What distinguishes Bardehle Pagenberg from other firms?

Since we were founded in 1977, we have been a truly mixed firm. Our diverse and international team of patent attorneys and attorneys-at-law grew up together and is thus capable of providing seamless holistic advice on all levels – legal, technical, and commercial. We are not dominating each other. Instead, we are collaborating at eye level, with the best idea winning, no matter where it comes from. Likewise, we form an integrated team with the client – as advisers and not as mere service providers, considering the client to be part of the ‘family’. A key strength probably is that we scrupulously and tenaciously get to the bottom of things, breaking complex cases down in a clear and comprehensible manner. That’s how we find crucial, convincing arguments. And we do so with passion and a fighting spirit.

You deal with a range of clients – from big multinationals to cutting-edge start-ups – how do you tailor your practice to provide the best possible service to them?

There is no standard approach, although there is one common characteristic: the client has a problem and to help solve it is our mission, regardless of the size of the issue. Many factors are relevant and different clients have different priorities, which eventually change over time. The challenge lies in continuously identifying and understanding the client’s business objectives. How to do that? Ask questions, even the ‘stupid’ ones, and listen, listen, listen. A trusted adviser takes accountability and challenges opinions, be it those of the client or those of their own. It is better to take some heat than to act as an echo chamber without adding value.

You have won acclaim for your courtroom acumen. What are the top skills that a world-class litigator like you needs to hone?

There are many skills that are needed. Some important ones are listen, anticipate, and be prepared. Stay calm, humble and empower the team. Be quick on your feet, proactive, and creative. Remain strategic and never lose sight of the commercial objectives of the client – no matter what.

Looking back, how would you describe the firm’s growth over the past five years?

The firm has always been growing, sometimes in bigger steps, sometimes in smaller steps. That said, the last two years were just crazy. We added four equity patent litigation partners in early 2023, wherein three of them were laterals coming from other firms, also leading to the opening of a new office in Hamburg. Since then, and given our success at the UPC, we hired more than 30 new litigators, patent attorneys, and patent attorney candidates, and we will continue to hire more. This was already required by the current workload. Given that we are expecting an increasing workload, we must be ready in time, which means continuously adding and training new team members as we go.

What are the biggest challenges facing international clients looking to enforce their patents in global patent litigation campaigns?

Looking broadly at the international patent litigation landscape, there are not many key jurisdictions and regions. Among them, Europe certainly is very important. While Germany certainly was the leading jurisdiction in Europe measured by number and profile of cases, I believe that we are seeing a paradigm shift with the UPC having opened its doors on 1 June 2023. Assuming that the UPC continues to deliver on its promises with respect to being a high-quality forum, with its incredibly fast timing (about one year per instance, with a final decision on infringement and validity after a bit more than two years) and providing meaningful relief, including quasi-automatic permanent injunctions with a broad geographic reach already covering more consumers than the US market, I would not be surprised if the UPC became the centre of gravity of probably most, if not every, global patent litigation campaigns.

Regarding challenges, it cannot be emphasised enough that validity is key; even more so these days. Many patents get at least partially revoked, which I consider to be an international trend. Thus, helpful fallback positions should be prepared from the outset before a litigation is actually filed. Vetting and strategically strengthening/improving patent portfolios in their substance is very important for litigious patent holders. Another – with the presence of the UPC, even more complex – challenge is to take the time and effort to specifically tailor the litigation strategy to the commercial objectives of the campaign. There is no one-size-fits-all and there are many strategic options to choose from, partially excluding each other.

What are your key lessons learnt at the UPC thus far?

There are many and I am continuing to learn every day. Two examples: it is a very intense, complex, high-speed litigation system requiring an experienced, well-functioning, relatively large, supportive outside counsel as well as in-house team. Anticipation of issues, the most diligent preparation, very efficient information gathering and case management are key as there is very limited time to act and as extensions of deadlines are quite exceptional.

Likewise, it is important to understand that the UPC truly is an international court, with the best-in-class European judges determined to harmonise European patent law in the best possible way within sort of a start-up atmosphere. Two of their slogans are “A United Team for a Unified Court” and “ThinkUPC”. In practical reality this means that the court will develop the case law in its own international way, taking national and EPO case law as a source of inspiration rather than for granted. This requires parties and representatives to do a lot of thinking to anticipate based on an educated guess. Also, it does allow for quite a bit of creativity, which is encouraged by the judges and should be used.

AI has continued to be a defining topic in the area of patents over the past five years. What impact do you feel it will have on your practice?

AI is, and will become even more, important. We already see a large number of AI patents being prosecuted, which is a focus of our patent prosecution practice. And it is just a matter of time until these patents will be litigated. Also, in terms of our firm’s daily practice, AI tools have become more and more important as they provide for significant efficiency gains and allow us to get rid of commodity work nobody really wants to do anyway. That said, I doubt that AI will be able to replace us, especially in IP litigation, where we continue to deal with humans, particularly on the bench.

What is the most exciting aspect of your role and what is the most stressful?

Everything and everything! My key driver is international, strategic work as just one member of a formidable team – it simply is a joy and mind broadening to work with intelligent people from different cultures and backgrounds on an international level. The most stressful, yet still very rewarding, part is the actual trial work, with other clients requiring real-time attention and other deadlines running.

If you could change one thing in the European patent litigation landscape, what would it be?

No doubt, the case management system of the UPC!

What advice would you provide younger patent lawyers with to develop in their career?

Be hungry and aware, yet take your time, step by step, and don’t hurry. It’s going to be good in the end if you just let your passion flow. There are opportunities everywhere and the trick is to be open and ready to pick them up. Most importantly: be selective and let some opportunities go; you can’t have them all.

Hear more from Tilman Müller-Stoy in Managing IP’s Five mins with… series.

Click here to see all the winners from the Managing IP EMEA Awards 2024, and photos from the event.