Conference preview: CEO of Bayer Intellectual Property Gmbh, Head of IP Bayer Group

As the CEO and head of the IP department of Bayer, what is your approach to the new unitary patent system?

We have always been extremely supportive of the system. We are one of the driving forces behind it from a German industry perspective, I would say. We want to keep the UK in the system, if possible; we are very positive.

How much use of the unitary patent is Bayer likely to make?

I would split my answer in two parts. At the final stage, if I may call it that, it is very likely that we may use it for almost everything we go on file with. That’s my expected final scenario. But we will not start with the full portfolio in the unitary system.

As of today, we are already addressing it. The way the new patent system is intended to work is perfect—it will be run by the European Patent Office so it will work without any doubt. However, any unitary patent will automatically be under the Unified Patent Court (UPC) with the related uncertainties and the lack of regulation regarding supplementary protection certificates (SPCs) in the unitary patent system.

What will be the major impact of the unitary patent on Bayer’s overall patent filing strategy?

The main thing is determining the cost-effectiveness of the system and the efficient enforcement of patents through the UPC in one proceeding.

In the life sciences area, we usually file in many European countries. From a cost-effectiveness point of view as it is drafted right now, the unitary system will be very effective. That is why I say in the final stage I assume that we will file almost everything regarding Europe through the system.

What will determine your decision to apply for a unitary patent?

This will be heavily determined by the enforcement and effectiveness of the UPC itself and the availability of an SPC system.

How will Bayer select the patents which should be opted in or out from the UPC’s jurisdiction? Is Bayer willing to opt out a selection of highly valued patents?

After a few years, I expect we would heavily use the UPC. But at the beginning, we will opt out a lot of the most valuable patents and go with only part of the portfolio through the unitary patent system and UPC. The reason is that the UPC is a completely new jurisdiction, so to speak.

Are you confident that the UPC will work effectively? For Bayer, what will be the biggest challenges of the UPC?

I am personally convinced that after a period of getting down to work, the UPC will be an effective and reliable system, but until we have a chance to assess the predictability and reliability of the UPC, we can’t afford the risk of putting the most valuable patents into the system.

Our ultimate goal is to be in it with almost everything. Only for very special patents that you need in only one, two or three countries is it not worthwhile to go to the unified system. In the end, we will mostly go through it.

The biggest challenge for the UPC is to develop a reliable, predictable and observable jurisprudence in a relatively short time frame. That’s why we would split and be partially in, partially out.

The problem I see is to get cases in the UPC because if you don’t have cases in the UPC, there will be no development, you cannot observe, you can never use it.

That’s a bit of a ‘Catch 22’ but I am very confident we will get out of this by having some cases, but maybe not the most important ones, at the beginning in the system.

Do you think Bayer’s strategy represents that of the mainstream pharmaceutical companies?

No, we do not represent the mainstream pharmaceutical companies. During the preparative work and discussions while the UPC was being developed, we were in large part (not necessarily fully) alone; the strengths and the confidence with which we pushed for the system from the Bayer side was not shared.

A few pharmaceutical companies mentioned that they would have some patents in and some out but others explained they would opt out all their patents. Some other companies said they would observe first how the system develops.

For the most important patents, we will not include them because it is an unknown jurisdiction. We will see if the jurisdiction develops the way we expect and becomes a ‘continental Europe’ kind of jurisdiction.

If the UPC becomes a predictable and reliable jurisdiction, we will end up using it quite a lot in the future.

Why do you have a different view from the majority of other pharmaceutical companies?

It is because we see the advantages of this new system for Europe, in particular, enforcement across all Europe.

A lot of other pharmaceutical companies see disadvantages and risks in the system. They see the risk of losing (revocation) an important patent in one spot all over Europe, while Bayer sees the advantages of the enforcement in one place for all Europe.

How will you shape your strategy? What are the critical factors in making such a decision?

We will decide to opt in on a case-by-case basis.

We will decide to opt out the really highly valued patents. This applies to current and future patent applications covering important products on the market so as not to fall under this unknown jurisdiction.

For secondary patents or less important ones, we could opt in to see how the system works when we have to enforce them.

I have no problem using the unitary patent system; the decision to opt in or out is driven by the uncertainty that surrounds the UPC at the outset.

I am optimistic but I don’t know how the regional chambers are going to work in the future. The most valued patents can’t fall under the authority of a new jurisdiction without certainty around the efficiency, reliability and predictability of the court.

To find out more about the conference, visit www.unitarypatentsystem.eu

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