Growth companies and procedural safeguards in European patent litigation

The unitary patent system with the establishment of the Unified Patent Court (UPC) will lead to unitary patent protection covering most EU countries. Moreover, it will lead to litigation with the same geographical reach. One potential concern related to increasing litigation is the so-called patent trolls (non-practicing entities) that purchase patents for the purpose of portfolio building or company financing. One of the key expressed justifications of the unitary patent system was to support small- and medium sized companies (SMEs) by securing them easier and wider access to patents. The aim of this article is to examine procedural safeguards from the perspective of the start-up and growth companies. These safeguards protect start-up and growth companies when acting as defendants. As a corollary, they weaken the enforcement mechanisms from the perspective of the plaintiff. The safeguards addressed in this article are fee shifting, preliminary injunctions, and bifurcation. As the UPC system is still evolving, the current state of European patent litigation in key jurisdiction countries is analyzed; the countries analyzed are Germany, the UK, and the Netherlands. This article explores how these safeguards evolve in the unitary patent regime and their potential to reduce uncertainty for start-up and growth companies when acting as defendants.