When Innovation Meets The Courtroom, with Laura Whiting and Arty Rajendra

Lee and Gwilym are joined on the podcast by Laura Whiting from Freshfields and Arty Rajendra from Osborne Clarke. Ever wonder who decides the price of your medicine, the terms behind your 5G connection, or why your favorite streaming platform keeps changing codecs? We sit down with two leading IP litigators to pull back the curtain on the high-stakes world where innovation meets the courtroom—life sciences, telecoms, and the streaming wars.

First, we unpack how patents power the business model in pharma. With only a tiny share of compounds making it to patients, those limited years of exclusivity fund a decade of risk and research. We explore how innovators defend that window and how generic companies plan surgical challenges to enter earlier and drive prices down. It is a constant chess match, played out across multiple countries with hundreds of millions at stake in a single market.

Then we turn to standard essential patents and FRAND licensing. After Unwired Planet, the UK became a pivotal venue for setting global license terms—one decision, worldwide effect. Now the battlefield is shifting to streaming and video codecs. Where do you license—decoder or platform? How do you price a license when usage, audiences, and devices vary wildly? The valuation debate is intense, merging economics, data, and legal precedent in new ways.

Transcript

Opening Banter And Ahoy Ahoy

SPEAKER_03 0:00

Grim, hello, how are you, mate?

SPEAKER_02 0:01

I'm very good. How are you?

SPEAKER_03 0:03

Yeah, that was the start of the podcast. There must be a better way to start podcasts than me just saying hello to you all the time. Because I realize I do it the same way every time.

SPEAKER_02 0:11

I think it brings a sense of comfort personally. People know where they are.

SPEAKER_03 0:14

Yeah, yeah, maybe so. Yeah, you know you're at the beginning rather than the end.

SPEAKER_02 0:19

That's one of the many beautiful things about that word hello. We should start saying goodbye at the end as well, so people are completely clear where they are in the podcast.

SPEAKER_03 0:27

I learned something about the word hello at the weekend. Just interesting. So I listened to the uh No Such Thing as a Fish podcast series, Stingami Jiggy. And I'm sure it was on that one that I heard it. Uh I listened to it when I'm in the gym and stuff like that. And apparently the word hello didn't exist before uh the telephone was invented. It's Alexander Graham Bell, wasn't it? The telephone. And he wanted to use uh hoy ahoy as being as the kind of the greeting that people would use on the telephone. And apparently hello was kind of evolved as a way of taking the the mick out of people that were saying ahoy ahoy on the telephone. So hello was kind of like uh was meant to be sort of some some whimsical riv response to that. And then it then it sort of became the word. I don't know if that's true or not. I I mean I believed it when I heard it.

SPEAKER_02 1:14

Well, going back to your opening question, why do we would start the same? Why don't we from now on start with Ahoy Ahoy? Ahoy Ahoy! Ahoy Ahoy! I've been missing it.

SPEAKER_03 1:23

We're nearly 200 episodes in and we've only just come up with this. Oh, we should just invent a word.

SPEAKER_02 1:33

Um yeah, I was gonna say, I'm in a place where you say hola, not hello, of course. Oh, of course, yeah.

SPEAKER_03 1:38

Yeah, yeah, yeah. Barcelona.

SPEAKER_02 1:40

Barcelona, very good.

SPEAKER_03 1:41

What's the weather like out there?

SPEAKER_02 1:43

It's quite warm, actually, as you say, I've got the window open here, and it's all very great.

SPEAKER_03 1:47

You've got your shirt sleeves on and stuff like that, so uh you look quite comfortable.

SPEAKER_02 1:51

Thank you very much. I am out there for long. Uh no, just overnight, just for a business thing. Oh, it's oh it's work. It's work. I haven't got I've got a job. Yeah, don't a family trip, I don't know. At that point. No, we uh yeah, we go to one place, we go to Murcia if you're doing that. And I'm probably I hope you I hope you're liking the pronunciation, but I've been I'm trained into saying it all properly, I get in a bit of trouble if I you've been you've been learning Spanish, haven't you? How's it how's that going? It's immersive, shall we say, rather than industrious. So in other words, I'd listen to it and occasionally add a word to my vocabulary.

SPEAKER_03 2:25

But it must be kind of used quite a lot at home, surely.

SPEAKER_02 2:28

Yeah, yeah. When they're talking about me, it is, that's for sure.

SPEAKER_03 2:32

That's why you're learning it, is it? Just to sort of try and eavesdrop on conversations about you.

SPEAKER_02 2:37

It's a defence mechanism.

SPEAKER_03 2:38

Uh cool, cool.

SPEAKER_00 2:42

Lee Davis and Willem Roberts are the two IPs in a pod, and you are listening to a podcast on intellectual property brought to you by the Chartered Institute of Pattern Attorney.

Meet Laura And Artie

SPEAKER_03 3:00

Speaking about defence mechanisms, it's almost like I've been doing this forever, isn't it, eh? Shall we shall we crack on with the podcast? Yeah, probably with a bit of context. So two guests today. Laura, can you introduce yourself first, please? Is that okay?

SPEAKER_04 3:15

That's absolutely fine. Thanks very much, Lee. Um my name is Laura Whiting. I'm a patent litigator and a solicitor at a partner at Freshfield's in London. I've rather terrifyingly been litigating patents for nearly 20 years now, which I'm completely in denial about because that seems far too long, but it's true. So there we go. I'm I kind of cover all kinds of patents. Anything that walks in with a patent stapled to its back, but lots and lots of life sciences disputes and the occasional, the occasional bit of tech thrown in for fun.

SPEAKER_03 3:43

I'm sure we're gonna um kind of work our way through quite a lot of stuff there. And Artie, welcome to the podcast. Who are you?

SPEAKER_05 3:50

Hi Lee, hi Gwillam, hi Laura, uh hi audience. I'm Artie Rajendra. I'm head of IP disputes at Osborne Clark. I'm also patent litigator, but actually I have a slightly wider practice. So I will pretty much litigate any IP right that you that you give me. So I do keep my hand in with the other rights as well. And in my in recent years, a lot of the patent litigation I do is friend related.

SPEAKER_03 4:15

So Gwenham, I think you're going to do a little bit of driving here, aren't you? Yes. I I might get an easy ride on this one.

SPEAKER_02 4:20

Yeah, let's uh let's do that. And what I I think what we often do, because this is the podcast about people as well as about IP, is we just actually kick off a little bit with um how you got into all of this. So Laura, maybe you can just kick off. How did you get here?

SPEAKER_04 4:34

How did I get here? Yeah, well, that's a kind of slightly complicated story, not very complicated. So I I I I grew up in Yorkshire and went into a state school up there. I was a slightly confused or perhaps annoyingly precocious teenager. I kind of thought I wanted to do law eventually, but when I went round universities, I didn't actually find any of the law seminars particularly interesting. And so I snuck off out the back of them and went into various presentations on the science departments instead. And I was doing a really mixed batch of A-levels, so a bit of arts, a bit of sciences, a bit of German language, because I'm uh a glutton for punishment, and ended up being counselled by a very wise head of my sixth form that I should do what I was interested in. And if I really wanted to do law, I could do that later. So following his instructions, off I went to read chemistry at UCL, and then got to the end of uh a master's project in my fourth year, and thought, I really haven't found the topic that I'm so interested in. I want to spend four more years living on a pennant, you know, a pittance in London, um, doing a PhD. So maybe it's time to go and figure out what this law thing is about that I thought I wanted to do when I was a teenager. So off I went, applied for vacation schemes in various places, and got an interview at what was then Lovell's for a vacation scheme. Had quite a nice, interesting day at their assessment centre. And they rang me up afterwards and said, Well, we haven't got any places left on our vacation scheme. And I was like, Oh, well, that's a bit rubbish. And then they said, But it's okay because we can offer you, we can offer you a job as a trainee. And so I thought, oh, but I don't know if I want a job as a trainee. That's a bit awkward. What do I say? So in the end, I being a terribly pragmatic sort of person, I said yes, and thought, well, if I decide I don't want to do it, I'll just tell them no a little bit later because I'm going to take a year out and go traveling before I go to law school and all that sort of thing. So in the meantime, I did a vacation scheme at Clifford Chance. That summer, I learned from that experience that I definitely didn't want to be a corporate lawyer, but thought, well, I I can probably do this. And having seen a little bit of litigation, I sort of thought that that is quite interesting. And I was still pretty keen to end up on the patent side of things given the science element. So started at Lovell's first seat in patent law in the patents team, and that was kind of it, really. I tolerated the other three seats in my training contract and um qualified there and then eventually landed at Freshfield.

SPEAKER_02 7:02

I think we were working with Lovels about around then on the disco vision CD stuff, as that seems to be called.

SPEAKER_04 7:10

That's tickling something in the back of my brain, but I can't remember what.

SPEAKER_02 7:19

Thank you. Good story. And so Artie, you're gonna tell us that you, on the other hand, always wants to be specifically an IP lawyer.

Why Litigation Powers Pharma And SEPs

SPEAKER_05 7:27

No, quite quite the opposite, actually. So my story begins even even further back. So my heritage is Sri Lankan, and when you're uh really small, uh your parents go to an astrologist and they read your star charts. So it's obviously all nonsense, but anyway, uh that is the cultural thing to do. And when I have my star chart read when I was three, it said I was gonna be a lawyer. And so my parents spent my entire childhood saying, You're gonna be a lawyer, you're gonna be a lawyer. And in my family, the only career opportunities are lawyer, doctor, and engineer. So um, out of those three, um I was more inclined to be a lawyer. I I also I also did science A levels, I did biology, chemistry, and maths, but by then I was done with science and thought I can't do any more, it was so awful. Um so I did law at university and it wasn't straightforward. I I got I got a scholarship to go. Did I enjoy it? Probably not, thinking about it. But the one thing I did enjoy was um there was an IP module as part of the degree and I wrote my final year dissertation on record piracy, which back then was CDs. That's how we consumed well, in fact, it might have even been vinyl, but certainly um CDs were nascent and cheap to make, so there was a massive problem at that time. And as part of that, I interviewed, had to go uh and interview people at the BPI and the IFPI, sort of all the record industry associates, associations rather, and Island Records, which is the record label for Bob Marley and is it you two? I can't remember now, but a very big band was is also on Island Records. And then I thought, oh, I'm gonna be a music lawyer because that's really cool. And yeah, and I can go to lots of gigs because I do go, I see a lot of live music even now, it's sort of my joy. And then I applied for a training contract while I was at law school, realizing that everybody else had applied for a training contract three years earlier. I just applied to firms that did music, did entertainment, and did IP. And I I sent off a hundred application forms and I got one interview. And uh luckily that was with an IP litigation specialist firm called Rouse, who very kindly offered me a training contract. So I didn't really have any choice after that because the only thing they ever did was IP litigation. So I've my training contract consisted of 18 months of IP litigation. I did six months out on common, just trying to tick a box, and then went straight back into Rouse when I qualified. So I haven't really done anything else other than IP litigation and go to university and go to school, that is my entire life so far. That's that's me.

SPEAKER_02 10:37

Thank you. Uh whilst I really want to go back to the astrology thing, which I think we should really focus on. No, I'm gonna ask you one question. What happens, given that all your families, engineers, lawyers, or doctors, what happens if the astrologist says something basically normal about your future career? Or do you have a specialist professionals or only astrologist?

SPEAKER_05 10:55

Uh, I think I think given what Sri Lankan parents want to hear is that their child is going to be a professional. They don't want to hear that they're gonna do some other career. And not all my family are in those professions, but certainly I think as parents of immigrants to this country with that kind of background, that's what you aspire for your children.

SPEAKER_02 11:15

What a great way to give yeah, what a great way to give your kids aspiration. I've just written in the start, literally.

SPEAKER_05 11:22

Yeah, but if I'd wanted to be an actor or someone in a band, that just wouldn't have been allowed. Yeah, which would have been way cooler.

SPEAKER_02 11:29

Well, thank you. And yeah, there's always a strange route. I think Lee, I don't think we've ever interviewed anybody who said I wanted to be an IP from the from the very beginning.

SPEAKER_03 11:37

It's funny how it's quite rare, isn't it, that we get that sort of disclosure.

SPEAKER_02 11:41

Yeah, I think that's fair. Yeah. But thank you for the backgrounds are interesting. And this the science kind of nexus obviously always helps and pushes you in that direction as well. Um I think the reason we thought we wanted to have this podcast was because we haven't talked about litigation very much. We've talked tons and tons and tons, well about everything really. We've never really focused actually on kind of the assertion side of things and you know what what you do with patents if all else fails, as it were. So we thought it'd be quite interesting to chat to both of you and just get a bit of a story. But probably given our um our audiences from a different range of different backgrounds, it turns out lots of people listen to these podcasts if they're interested in going into IP. So, you know, I think because we're not just talking to you specialists. I don't know if anyone wants to kind of give a quick picture about you know how what what happens at this point in the process. Somebody infringes your patent, you decide that you can't find another solution other than asserting. How do we do it? I don't know if he wants to answer that. I mean, happy to leave it to anyone.

Life Sciences Patents And Generics

SPEAKER_05 12:36

Well, I I was just going to make one observation. I think I think it would be really useful to hear from Lau Laura about life sciences in particular, because I think the question you asked there has a presumption that something's gone wrong and therefore someone has to assert their rights. But in a lot of the litigation that that I do, and I'm sure Laura does, actually, IP litigation is part of the business model. So I'll just very you know briefly talk about the FRARD aspect and SCP holders, they they have to assert their rights in order to get licensing revenue. That's how they do it if they can't get a deal done. So it's kind of built in and it it's that's how the business operates. But I mean, I think Laura, it might be good for you to give some context on life sciences companies and how how they use their patents to have a competitive edge.

SPEAKER_04 13:29

Yeah, sure. And I mean it we should also touch on the the other category of litigation because there is actually quite a lot that goes on outside those spheres where people do have something that goes wrong and their competitor is doing something they don't like that's too similar to their product. We can come back to that. I mean, Artie's right. In the life sciences industry, patent protection is so built into the intrinsic value of that industry that it's what allows having a 20-year patent term is what allows companies who invent new medicines to recoup that huge RD investment, especially when you realize that only a tiny, tiny fraction of all the compounds or new biologic molecules that a company will get out of its RD labs will ever go anywhere near a patient, let alone successfully go all the way through to clinical trials and be approved. So all of that clinical research tends to take a lot of time, a lot of years, and companies will look at how long they're going to have as being the exclusive seller of a new medical, a new medicinal product, um, as being their opportunity to get the income that pays back for the RD, not just on that product, but on all the others. And of course, going forward funds the RD, coming out the other end. So what you end up with then is innovator companies who invent the new molecules will want to stay on the market exclusively as long as they can. And they have there are regulatory time periods that allow for that, and then um then patents come into play and little patent extensions called SPCs that we don't need to get into. And then you have what we call generic companies who you'll all be familiar with going into a pharmacy and picking up a pack of paracetamolar ibuprofen, and that's the generic name for a drug. And so once the IP protection has expired or been challenged, then generic competitors will come in and sell a product which ends up being priced much more cheaply than the innovator. And that works for their business model because they're in the business of making lots of different uh generic drugs, and they they will obviously do some RD on formulations and things like that, but they don't do the the big sort of start from scratch RD on what's the new drug we're going to make. So those, because of that that IP being so central to the way that innovative farmer and generic farmer makes money, we get very regular disputes about it. And those happen when there's some kind of uncertainty on one side or another about whether or not that piece of IP, that patent that goes beyond the regulatory exclusivity period, um, is valid or not. So we had I had a big dispute this summer between AstraZeneca and a bunch of the generic companies, so the likes of Tevra and Beatrice and um and so on, all trying to knock out AstraZeneca's patent for a particular drug for type 2 diabetes, because once they knocked that out, they could get on the market, and the market was worth hundreds of millions of pounds per year in the UK. So that's kind of when we get we get stuck in. But all of these companies are free, what we call I always refer to as frequent flyers in the patents court. They've got their gold card, they know how it works, and there will be a little bit of pre-action correspondence. But broadly speaking, the innovator companies usually know, not always, but usually know what their projected loss of exclusivity or LOE date is. They know what patents are around at that point, they will have a view on the strength or weakness of them. And likewise the generics do their RD in the legal department and work out which patents they think they can take out in which countries to get on the market earlier, if that lines up with their own internal development process.

SPEAKER_02 17:13

So that's kind of how that all works. And then did you say there's kind of so these are two quite specialists but very busy and and very but very business critical areas where IP and innovation and all fit together very nicely with litigation, enforcement, negotiation to make sure that you know phones and medicines get to market in broad terms. I'll bounce it back to Artie for the other the rest of the stuff. And there's two branches to that. One is other patent stuff, but the other, of course, is the other rights that you mentioned as well.

Litigation As Business Strategy

SPEAKER_05 17:41

Yeah, I mean, I think I think sort of maybe looking at it a little bit from a broader perspective, litigation is what's great about the sort of litigation that Laura's talked about, and I would say in the SCP field, is because uh IP litigation is baked into uh the business, you are dealing with uh very sophisticated uh litigators and it's not uh a kind uh it's not a crisis situation, and it's not uh you know, no one wants to be sued, but people know how the game works and they can be there at the more sophisticated end. That's not to say that people who have been sued out of you know by surprise are not sophisticated, but the likely situation is neither party wants to be there. The claimant in that kind of situation, the claimant doesn't really want to have to spend all this money on litigating to enforce its right, and the defendant certainly doesn't want to be there because they probably were not expecting to be sued. So when you're dealing with that kind of litigation, there is a big education piece of just this is how it all works, and that's not just the procedure, it can be things like how to behave in court, um, how to phrase things, how to deal with negotiations. They just might people just might not be used to that. So there's a kind of an an additional layer of advisory that you have to add on top of how you might behave with um with people that are are used to IP litigation. And you also have to deal with the fact that they don't want to be there. And you know, sometimes it's quite emotional and you have to deal with those aspects. Whereas in the kind of SEP world or the life sciences world, clients can be more objective and perhaps less emotional about how they're going to pursue the litigation. So that's a preliminary observation, I would guess. And I g it I think it it it this sort of thing doesn't really happen with the other IP rights because it's not as though you have many companies that are sitting there saying, well, we'll we'll need to assert our copyright or we need to assert our trademarks. You know, that's part of our business model. They will, of course, do that to protect their position and uh protect their market share, particularly in the case of trademarks where uh issues of confusion might arise and they need to need to litigate to protect their market share or their reputation, another very good reason to litigate. But with patents, as Laura said, the money is huge, the money at stake and the costs are drop in the ocean usually compared to the amount of money at stake. It's a bit uh it's a different vibe, for want of a better phrase.

SPEAKER_02 20:27

Now that's interesting. I mean, when I've uh been advising people over the years and litigation is one of the things on the cards, and they're not, as you say, kind of serial or built-in frequent flyers, they're not frequent flyers. Uh, one of the things that I would say is that you lose vast amounts of management time because the whole board will get totally obsessed with this piece of litigation. Two or three people won't do anything for the duration of it. And that's that's I think in those businesses, I tend to highlight that the cost obviously, and impact either way, but the impact on management time, general involvement, and emotional, emotional stress is a really big one, isn't it?

SPEAKER_05 21:01

Yeah, and part of part of our job is making that easier. I mean, I I we don't want people to feel like that. So a lot a big part of it is to make feel people feel comfortable and realise that you know these are important, this is an important business uh procedure that they're going through as well.

SPEAKER_04 21:16

Exactly. And explain that although it's it may be their first time doing it, there's a you know, this happens pretty frequently. And you know, we can smooth it over and make it less uncomfortable by kind of giving a bit more context to how it usually works, and what also getting yourselves into a position where if you don't want to be in the litigation for the long run, you can get yourself into a strong position where you can then mediate a settlement and get out of it in a way that hopefully everybody is either happy or at least not totally unhappy with.

Global Nature Of Patent Disputes

SPEAKER_02 21:54

So bringing it back to the kind of areas that we you open you both opened on, which is kind of the more you know people. Who litigate as part of their business model effectively. I think again when I try and explain this to clients who don't really know whether they're getting a patent and so on, I kind of go through different stages of what litigation can look like. And I think when you get to the multinational and even global kind of framework that we're now starting to operate in, it their eyes glaze over. And we just go back to you, get a patent. Honestly, it's a good idea just in case we'll cross we'll cross the other bridges later. But I mean, um, maybe uh Laura, start with you if you don't mind. I mean, I think it's maybe some listeners wouldn't be aware of just how international patent litigation basically is.

SPEAKER_04 22:33

Oh, I mean, that's definitely true. I mean, I think a lot of people think, for even from the legal industry, you think about litigation and think, well, you litigate in one country that has jurisdiction and that deals with the whole dispute. But the really weird thing about patents is that they they only exist on a national basis, um, apart from unified patents in the in the um in Europe. But and so you have to litigate them in every country you want to enforce them in. And now it's a little bit easier because we have the unified patent court in a big chunk of Europe. So you can do that once for 20-something countries. But otherwise, you've got to think about where is my where is my business going to be impacted by this? And then as a litigator, and this is what I think actually is a really interesting part of the job, is you've got to think about, okay, well, I want to make this argument in my home jurisdiction, but is that going to absolutely destroy the argument I need to make in Spain or Brazil or the US or Australia? And so there's a huge amount of coordination that goes on between these big teams of international panel litigators. And you get to learn quite a lot about those little nuances and fun things about what happens in different jurisdictions and how that's different to the way you do it at home. So I think what's kept me in this for 20 years is the fact that every time you do something, you learn something new, whether that's science or about some funny aspect of the legal system in a country you haven't come across before or whatever it is. So I think that's I appreciate that the clients may not love that we are continually learning, but um uh for a lot of this cases, I think that's what keeps them doing the job.

SPEAKER_02 24:08

Well, they love the experience when you when you can roll out the war stories for sure. And Artie, I know you're at the pointy end of this, of course, because you mentioned FRAND, which um for less familiar listeners is the sort of terms on which licenses are negotiated between people who own patents and people who want to sell phones, roughly speaking. And that's genuinely a remarkably international thing. Maybe maybe because of the technology, but it's what what's going on? It's incredible at the moment. Hit us with the stories.

FRAND And The UK’s Rise

SPEAKER_05 24:38

Yeah, so so these are standard essential patents. So they're a special type of patents, and they're they are essential to standardized technology. And by way of example, 4G, 5G is all standardized technology, but the patents are owned by hundreds of different people. Um, and when you have one of these special patents, you have to agree to license them on fran terms, fair, reasonable, and non-discriminatory terms. And the big turning point was a case called Unwide Planet, which uh the first judgment came out in 2014. And in that judgment, the English court decided the terms of a global license of the claimant's patent, so not just a license to the UK patents, a global license. And that was uh upheld by the Court of Appeal and the Supreme Court. And I was fortunate enough to act for Unwire Planet in that case. But it was a big changing point because it really put the UK centre stage of these types of disputes. So there have been lots of other step litigation, I think quite a lot in Germany uh and also in the US. Uh, but it it catapulted the UK to number one. And I I remember going to this conference in Washington, there were about 300 people in the room, and they were talking about this one case uh for pretty much half a day. And you think, wow, that's pretty awesome that the UK is seen as the leading country for these types of dispute. And that has remained the case to this day. In fact, I was at another conference uh in Oxford last week where they were, I mean, it became pretty contentious because some countries, some judges in other countries are concerned about the UK uh capturing venue, and that's caused all sorts of discussions. Uh I'm trying to put it diplomatically.

SPEAKER_04 26:30

Legal tactics, interesting decisions. It's been a hot it's been a hot few months in Frankwell.

SPEAKER_05 26:36

It it it it is, and um a big debate's going on between the UK judges and the German judges and the UPC judges. So it's it's all good fun. But actually, the real disputes now, I mean, there are some I mean, I'm doing uh mobile phone dispute and I'm doing a connected car dispute, fan dispute, but uh actually the real um hot potato at the moment is streaming. So video codec standards is is the new uh place where all the litigation's happening, largely because uh uh patent owners have always licensed at the decoder end of video compression, but they haven't licensed at the streaming end, and they're trying to license at the streaming end now, and that's causing all sorts of international jurisdiction wars. But B, how do you value uh a license for streaming? It's net it's whereas with phones, there's been there've been lots of research and you know public information and court decisions, streaming is a whole new world where valuation, people aren't really sure how you value that. So that's the that's the next next frontier for and land. One thing I would say, there's actually not that much to do with patents.

Streaming And Video Codecs As The New Frontier

SPEAKER_02 27:52

Um and I think in a sense, Laura, as you said, patents are very national thing. So, Laura, you were mentioning that patents are a national right, but telecoms have kind of broken the mould in particular because it's a totally without boundary technology. And I guess this is where the courts are really struggling, is the crossover between national rights and a genuinely global technology.

SPEAKER_04 28:19

I mean, you you could probably say that about other products as well, where they're distributed internationally. I think the really big problem with um Fran jurisdiction disputes is that ultimately what you need to determine, and what the English courts determined in Unwide Planet is what other terms of the license that the SEP holder has to give to the implementer in order to use the patents in their devices. So if you're doing that, you don't want to have 20 cases in 20 different countries, all of which come up with some slightly different license term for different jurisdictions. And that's why the English courts decided they would set a global front license, amongst other things, you know, including that that is the way that industry negotiates. You don't sit down in a room and say, right, we're going to do England today and then France tomorrow and Germany on Wednesday and do it all separately with slightly different terms. You want to have one agreement with whoever it is. So, but resolving that in an international court landscape where, you know, the companies on either side of the litigation will have a different view as to where they'd like to be. Maybe one of them would like to be litigating in China and the other wants to be in the US, and then somebody, you know, in another case, someone wants to do it in the UK. It's not easy to resolve that inherent tension. And you, from a jurisdictional law perspective, you don't want to have tension between conflicting results in different countries because that just causes many more problems than you solve. So it's no, no one has come up with a perfect answer for how you ought to do friend disputes. There's lots of talk, including from Lord Justice Arnold, about arbitrating, because that would obviously be a single tribunal internationally, but that requires the parties to agree. And I'm sure RT would accept the one thing you can guarantee about any Fran dispute is the parties are not likely to agree on very much at all, at least when they're in court.

SPEAKER_05 30:16

No, it's everything every tiny little detail is disputed. It's hard to reach agreement on anything. And I think and and what where I mean we shouldn't get, I don't want to get too bogged down in the all of this because it is quite detailed, but one of the difficulties arises is because the UK look at it, look at France as a contractual issue, whereas uh the German and the UPC look at it as a competition law issue. So they're both working from different jurisdiction or jurisprudential uh bases. Um, and that's where again conflict arises between the national courts. But it's exciting.

SPEAKER_04 30:57

Yeah, it's super exciting, but it's actually almost less an IP issue than just a really, really nerdy uh international private international law jurisdictional issue that that makes that sounds like you've mentioned also.

SPEAKER_02 31:15

We've touched on the UPCC several times, but obviously that's an exciting new kind of jurisdictional development in the last few years. Yeah, you have to keep a breath are we excited by that? How are the how are the Brits faring?

Jurisdiction Clashes And Arbitration Talk

SPEAKER_05 31:28

So my observation um Brits are involved, they're doing it one way or another. They're either a part of the legal teams, particularly for US clients, they want they want the English uh lawyers as part of the legal teams. And I think that comes from something Laura said. We do have a lot of experience of international coordination, um, and being able to bring that to bear in in UPC proceedings, we also have you know more experience dealing with experts and things like that. And even if you're not part of a legal team involved in the UPC case, you still need to keep abreast of the law because we know our UK judges are, and there are several interactions between uh what the UPC is doing and finding, and what the UK courts are doing and finding. So it it's uh it's an it's some another exciting uh development in uh patent law and something uh additional we need to know about in, you know, in addition to what's going on in the English courts. That's my initial observation, Laura.

SPEAKER_04 32:39

What yeah, I mean it's obviously not really new anymore because it's been going for more than a couple of years already. But I think uh I have suppose two observations really. The first is that the British patent lawyers are far more represented before the UPC, including as UPC representatives, if you are also Irish qualified, uh like I am, uh, than I would have expected after the Brexit vote and the decision was taken not to participate. So somehow we've managed to, perhaps in a very British way, sort of inveagal our way in, nonetheless, and we have a foot in both camps because we're happily litigating in our own courts in England and Wales, uh, but also getting very stuck into the UPC. So I think that's been terrifically good for um IP litigators in the UK. The other thing I was going to say is that it's it's just fascinating to watch the case law come out of the UPC and it comes out at great speed from all sorts of different local divisions. And as Artie says, you've got to keep up to date with it, not only because you need to know what's going on, because it's enormously important for your clients, but because, you know, I've just been through a had a couple of appeals last year where we everybody referred to all sorts of cases from all over Europe and the European Patent Office as being an example of how other countries were implementing the European Patent Convention, which is fundamentally where English patent law comes from. Those decisions are gonna be UPC decisions in future. They haven't been much to date because there haven't been enough appeal decisions from the UPC Court of Appeal. But we're gonna go into Court of Appeal and Supreme Court cases in the future, not talking about what the Bundespatent Collector's done, but what the UPC Court of Appeal has been doing on a particular topic. And I think that's, you know, I I'm sort of looking forward to that. I think it's fascinating.

SPEAKER_03 34:34

But in if that's okay, Gwillam, because I know I said I'd sit here and let you drive, but I've got a few questions and I'd quite like to ask them. Not least because both Artie and Laura touched on things that I want to ask questions about. So um I'm in, I'm in if that's okay. So Artie, you you in when you sort of first started to answer this question, you spoke a bit about experts. One of the things on the list of questions I wanted to ask if Gwillam lets me get a word in edgeways, was was about experts. Uh and I just and and obviously Laura to you as well. It's it's good. The question is to both of you, but what what's your view on kind of expert witnesses, the value that they add, uh particularly I guess in a in an age when things are becoming more and more technical, and perhaps judges are therefore less and less able to um to pick up on the nuances of the technology?

The UPC’s Impact And UK Involvement

SPEAKER_05 35:17

Yeah, I mean they're they're crucial, really. In English pattern litigation, they are absolutely crucial, and quite often your case stands and falls with your expert. I mean, there are legal questions, but in one way or another, the expert evidence is probably going to inform even the even the more straightforwardly legal questions. So uh an important part of our job as solicitors, which is not what barristers do and usually not what pan attorneys do, is actually identify the expert and interview them and uh go through all these the the rules in which you need to instruct them and show them the documents and prepare the expert report. I mean, you may get barrists involved at the expert report stage and maybe involved in one or two interviews, I don't know. But but that is a really important part of our job. Um so and it's also you meet such amazing people. I mean, I mean, these people really are at the cutting edge of where where do you where do you find your experts and what makes a really good one?

SPEAKER_04 36:26

Oh, it's a bit of a dark art leave, to be completely honest. I think ever I think every junior associate in a patent team in London will have a different way of finding experts. Obviously, the power of Google is extreme or any other alternative search engine is extremely useful because you have to just go and work out, you know, is there somebody who wrote the book on this topic? I did a case about HIV medications that inhibited a particular enzyme in um in the HIV virus, and there was literally a person who had written the book, the only book, on this enzyme. And so we instructed him. Um, but it could be someone who teaches a really good university course or somebody in industry, because it's not always that you want an academic, or it's not always the best. So there are some fields where no university is studying them, but you really need some somebody who knows. So my colleagues did a case about um hairstylers last year. There is no university who's studying hairstylers, but there are a huge number of people in industry who've designed them and know what's good. And, you know, this is all about the physics of the airflare around a hair colour. So it just depends on the case. Um, and you've got to find, as well as the person who is really expert in the particular tiny niche that this patent covers, someone who can communicate really well, both to you, so that you can have some chance of understanding what's going on at an early stage, but also to the court. Because as Artie said, it's it's in English proceedings, it's fundamentally important that you have a good expert who communicates well with the judge. Um, where we get to in the UPC, I think is to be determined with experts, but they've not been making much use of them so far. At least in the courtroom, behind the scenes, I'm sure they're still involved.

SPEAKER_05 38:18

They seem willing to read the expert reports.

SPEAKER_04 38:21

Yes.

SPEAKER_05 38:22

But they never ask any questions or take it any further than that. That's is my experience so far.

SPEAKER_04 38:28

But maybe we've gone too far with um, maybe we've gone too far with cross-examining experts anyway. Who knows?

SPEAKER_03 38:39

Now I'm thinking to myself, and you probably couldn't name names, that would be terribly unfair. But have you ever have you ever used an expert and then it all gone horribly wrong?

SPEAKER_04 38:47

I'm pretty sure everybody who's been practicing and I've in pattern litigation for a decent while has had someone on the stand who perhaps was not, did not perform to 100% of their ability, shall we say?

unknown 38:59

Yeah.

SPEAKER_04 38:59

And that's applied to the family should never have that experience.

SPEAKER_05 39:02

No, I I was gonna say, I mean, obviously you're you're not just dealing with expert evidence, as in other cases, you might have fact witnesses, and that can also go wrong. I mean, it it's it's quite a stressful experience being cross-examined. I mean, I've I have had the misfortune of being cross-examined myself and luckily got away relatively unscathed. But getting into that witness box and you know, realizing that a lot rests on what you say is you know, is is an unusual experience for most people. I mean, there are professional witnesses and they are obviously much more comfortable, but uh technical experts in patent cases, you know, you you ideally don't want them to have been in too many other cases because that's great cross-examination ammunition for the other side.

Experts: Finding Them And Winning With Them

SPEAKER_04 39:55

So And in my experience, their reaction, uh witnesses' reaction to being in the box whether they're an expert or otherwise goes one of two ways. Either they absolutely relished it and they sort of enjoyed being tested on all their knowledge and their experience and everything else, they can do a perfectly great job and they get down and they say, Well, that was really interesting, and I never want to do that again.

SPEAKER_03 40:21

There's a whole podcast in experts here. Um probably. And and I do know that there is an academy of experts, so there is such a thing as professional experts, and they do have a professional body.

SPEAKER_05 40:31

There are, yeah, there are for sure. And um, I mean, in the FRAN world, we don't have technical, obviously patent technical experts in that respect, but we have um accountancy experts, we have economists, and they're all they all tend to be professional expert witnesses who have done countless cases, but still giving you know expert evidence that is crucial to the case.

SPEAKER_03 40:56

I'm conscious that one of the things I'm meant to do is keep us on time and I've failed miserably. We're well over at the moment. I have loads of questions. I've got my big long list of questions that I was hoping to ask, but I've also had a question that comes out of something that Laura said. So let me just do that one and then I'll try and close us if that's okay. So Laura, you mentioned about the UPC and of course the um well, the question was about the UPC, but in in your answer you talked about the UK being out of the UPC. There are there are noises, noises about the benefits of the UK rejoining the UPC. Rejoining, can you rejoin something you were never properly in? Or joining? Do either of you have a view on that? I mean, CIPA's view is that uh we think that we would be quite supportive of such a call if one were to happen, but we're not publicly shouting that that should be the case. So I just wondered where you were on it.

SPEAKER_04 41:43

It's quite a difficult question, isn't it? Really? I mean, the UPC is obviously really exciting, but I sort of feel like we've managed to have the best of both worlds at the moment, both having British practitioners involved in it in various ways, but also we're not at risk of what I hear other practitioners in countries where the UPC does apply talking about a decline in their national courts. It's not happening everywhere because Munich regional court is currently having an uptick because the UPC in Munich has slowed down because they have too many cases, and it's quite a complex picture. Um, but I mean, I think putting that aside, for me, there's also what seems an insurmountable obstacle, which is the fact that we would need to be an EU member state in order to remotely have any chance of going back in. And um, whatever your personal views about Brexit are, that that seems to be a very large barrier to getting back into the UPC.

SPEAKER_03 42:41

Yeah, yeah. I think part of that part of that argument, if we were to build an argument, would be that the UPC has been such a success that why wouldn't why wouldn't you want non-EU states in it?

SPEAKER_04 42:52

Well, I and I can see that, and there's obviously the long-arm piece going the opposite way at the moment. But um I I I sort of think we haven't yet at least seen any real decline in the number of pattern litigations filed in the UK, in the English High Courts. Uh and so why would we, if there's no downside happening, why would we want to to to put the continued kind of huge throughput of big and important cases through our courts at risk? But everybody will have a slightly different view.

SPEAKER_05 43:27

Yeah, I mean, just my views accord with Laura's. We we are we have seemed to have got ourselves into quite a good position now. Do we want to rock the boat? And also I do wonder, even if we got back in, let's say it takes another two years to get back in, will the market have changed so much by then that you know, clients are then used to picking German firms? I mean, they're the people that are doing quite a lot of it, you know. Will they will they suddenly go, well, actually, you know, let's let's change. What we're doing and go to this UK firm. And that's that's putting us. I mean, I know a lot of these teams are conva combined anyway, UK Germany and perhaps other jurisdictions, but I don't know.

SPEAKER_04 44:13

That's assuming we could get back in in two years, which politically seems amazing. Realistically, we're talking about more like five, and then we're right on the end of the UPC sunrise period where there may no longer be any uh parallel national patent cases going on in the UPC states. Could be a very different picture.

SPEAKER_03 44:31

Yeah. Thank you so much, Mike. So yeah, it's really really interesting to get your perspectives on that. I think it's really helpful. Um, I'm afraid I'm gonna have to call us to order because we've done 50 minutes now and um and I I was aiming for 40. We're to turn over. I've still got a closer question too, if you're happy to entertain me for a couple of minutes. So that so that so the way the closer question works is I do something a little bit tangential. So something that's come out in the podcast that I ask Gwillem, and then we're gonna ask you to also share your kind of thoughts on it as well. So the question's coming your way, but you get the benefit of it going to Gwillem first. Okay. So so Gwillem, I'm I'm gonna keep on the expert sort of line and ask you, is there anything in your dark past, it doesn't need to be dark past, it could be your bright past, that you you think that you're an expert in that you would love to be challenged in a court on?

SPEAKER_02 45:16

I'm really bad at things like that. I'm gonna say I'm quite good on card games. I know loads and loads of random card games, so I reckon I could read up on a few more. Is it different really from your mastermind topic? It's kind of the same thing, isn't it?

Courtroom Performance And Witness Pitfalls

SPEAKER_03 45:30

I don't think it is. I think this is something where it's so niche and so about you that you might be the only person that that understands it well enough to go and testify about it.

SPEAKER_02 45:40

Oh right, in which case it would definitely be setting up random Artie, you're like there's random live music gigs based on pretense of a band and pretense of a venue. I think I'm quite good at that.

SPEAKER_03 45:55

So go on, Laura, Artie, do either of you something that you've always wanted to be um challenged on as an expert.

SPEAKER_05 46:07

My uh my my specialist subject, which would actually be it would be me it was be something music related and uh it could be Taylor Swift's eras talk, because I followed that slightly obsessively and went uh a couple of times, and uh yeah, embarrassingly so because it was actually my daughter who was the big Taylor Swift fan, and then I sort of got slightly obsessed myself. But yeah, I that would be my specialist subject.

SPEAKER_04 46:36

Ah, it's difficult to say, isn't it really? And this is definitely much more of a mastermind question than a personal one, but I think yeah, I could be comfortably cross-examined on the sort of works of an author called Diana Gabbledon who writes completely ridiculous um time travel fictions set in the Scottish risings. It's all very bizarre and niche, but you know.

SPEAKER_03 46:56

I don't think Gwillem can ask me. I think he's lost the ability to speak. Well, what would be yours, Lee? Let's us ask. Thank you. You've stolen this thunder. You've stolen his thunder. No, no, normally I've outthought Gillam on this. I've only asked this question because I've got an answer. And I don't particularly, it was such a kind of good question based on the expert thing. I hadn't hadn't really thought it through. So I'm saying thinking, oh, what what would it be? Uh and I I don't know whether whether Gillem knows this, but I do have a particular fondness for walking sticks and their construction and the like. So it wouldn't work terribly well as a mastermind question. But if someone were to quiz me on the mechanics of walking sticks, I think I would be very, very happy. And in fact, I was sharing that knowledge with someone at the weekend who looked entirely bored with the whole experience. So that that possibly would make me a great expert in that sense.

SPEAKER_02 47:41

We don't do you know what? I reckon all three of us would cheerfully chat about walking stick mechanics for quite a while with you, Lee, judging by the jobs we chose.

SPEAKER_03 47:50

Uh I once made a walking mistake, and I I just made the angle of the handle sort of like slightly too much off of 90 degrees and slightly too long for the person that was using it. Uh so it would come off in the hand and stuff like that. So yeah, yeah, I'm a bit of a walking stick geek. You didn't know that, did you? Now everyone knows. Yeah, yeah, yeah. Oh, we're there, we're there, we're thereabouts. And it feels like we could have gone on forever. And maybe maybe we can revisit some of that stuff at some point in the future, get you um back on again. Thank you both for coming on. It's really been a pleasure having you. Gunham, thank you for ablely working through your technical difficulties that I understand you were having there, because most of the time on my screen it looked like you were a um sort of like a marble statue of yourself. Magnif magnificent marble statue, I should probably say. Yeah, yeah, yeah. Yeah. Thank you for that pose. No one can see it. And to everyone listening, if you've enjoyed the podcast, leave us a little review because if you review the podcast, then people find us, and we do really, really appreciate that. See ya, Laura, see ya, Artie, see you on the next one, Gwynn.

SPEAKER_05 48:45

Thank you, everyone.