October 18, 2024 • 44 mins
We’re back! Kicking off season 12, Lee and Gwilym are joined by Rachel Fetches, IP/Patent Litigation Partner at HGF.
Discover how the Unified Patent Court is set to transform patent litigation across Europe. This episode sheds light on the shift from a fragmented to a more centralized system, offering patentees the promise of pan-European injunctions and a streamlined process.
Join them as they discuss the potential of the UPC for SMEs, international businesses, and the opportunities and hurdles presented.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Hey, gwilym, welcome back.
We've both been away from thepodcasting world for a couple of
months, I think.
Speaker 2 (00:06):
It's amazing what happens.
What do you do?
What's going on?
Speaker 1 (00:09):
I don't know.
I live outside of the screenbox because I've got used to
seeing myself.
So yeah, it's been a couple ofmonths since I've actually seen
you.
You only exist in this worldnow for me.
Speaker 2 (00:23):
We had noodles.
Speaker 1 (00:24):
Oh, we did have noodles.
Yeah, we went to the noodle bar.
That was good.
I've just got back from Canada.
I've just been to the IPIC, theIntellectual Property Institute
of Canada's annual conference,so that was really cool last
week.
Speaker 2 (00:36):
Do you know what that brings?
A really good question.
I've always wondered how do youpronounce where you went St
John's?
No, I can pronounce that bit.
No, the three words they puttogether are new found and land.
Speaker 1 (00:53):
So I've had lots of Canadians laughing at me all of
last week because I obviouslypronounce it in the way that I
pronounce most things in the waythat it's spelt.
So yeah, newfound land, no,newfoundland.
Speaker 2 (01:04):
I thought it was Newfoundland.
No, newfoundland, newfoundland.
I thought it was Newfoundland.
That's a very British thing todo, though, isn't it?
Speaker 1 (01:09):
They seem to take all of the vowels out is the way
you pronounce it.
So I thought I did find overthere and I haven't necessarily
noticed it in other parts ofCanada when I've been there, but
certainly in Newfoundland theyare the most courteous, kind car
drivers anywhere in the world.
So if they see you anywherenear the curb and they could be
(01:31):
100, 200 yards away they'll stopand even if you're not going to
cross the road, you feelobliged to cross the road
because they've stopped.
So I found myself zigzaggingacross the road because cars
kept.
And apparently that's just howthey work out there.
They respect the pedestrian.
The pedestrian comes first.
If you're standing on a streetcorner, all of the traffic will
(01:51):
stop so you can cross the road.
It's nearly got me killed inLondon this week because I've
forgotten that I've got back toLondon.
Speaker 2 (01:57):
Can you imagine, how many cars are there Not?
Speaker 1 (02:00):
many to be fair.
Speaker 3 (02:01):
I Not many.
Speaker 2 (02:01):
To be fair, I was going to say it's like three
yeah, wow, yeah, because I'vedone the opposite in Vietnam,
where you just walk and don'tlook and the cars swerve around
you, which is the almost exactopposite.
I'll just go quickly to thelack of vowels.
So what would your name be ifwe took all the vowels out?
Lidavus, see, mine doesn'tchange.
Speaker 1 (02:32):
Rubits, rubits, rubits.
But on the more serious side,really good to catch up with the
Canadians.
We have a great relationshipwith our Canadian colleagues.
Speaker 2 (02:41):
You'll remember they came on the podcast when we were
in Atlanta.
Speaker 1 (02:42):
So it was great to catch up with Paula and Kat, who
were our guests then.
And, yeah, fascinating weeklooking at things like how
regulation's going in Atlanta.
So it was great to catch upwith Paula and Kat, who were our
guests then.
And yeah, fascinating weeklooking at things like how
regulation's going in Canada.
So they've had their equivalentof IPREG in place now for sort
of three or four years.
So it's good to see how that'sgoing and to be reminded of all
of those painful teethingproblems that you have when you
(03:03):
bring on a new regulator, anindependent regulator, for the
first time.
Spend some time looking atprivilege in canada, because
that's an issue that we'veattorney, uh, agent privilege
that's something we've beenworking with with a pick on,
because that's, um, that'ssomething that agents don't
currently enjoy in canada'sprivilege because of recent
rulings.
Yeah, and obviously we talkedabout cptpp.
How could I go to canada andnot talk about the comprehensive
(03:25):
and progressive agreement oftrans-pacific partnership?
so that's, so well say it soI've lived it for so many years
well, we're in now, aren't we?
Speaker 2 (03:33):
no, peru, thank you, thank you, peru.
Speaker 1 (03:37):
So um, yeah, no yeah yeah, big up to peru for um, for
being the final.
Are you a ratifyee?
Is that what you are if youratify something?
But yeah, for ratifying andallowing the UK to join.
We really ought to get Rachelon, because I'm conscious that
she's sat there listening to us.
Speaker 2 (03:52):
Oh, that's what you do in podcasts, isn't it?
Speaker 3 (03:54):
Yay, that was it, lee Davis and Gwilym Roberts are
the two IPs in a pod and you arelistening to a podcast on
intellectual property brought toyou by the Chartered Institute
of Patent Attorneys.
Hey, rachel, hello, how are you?
(04:20):
Hello, hello, very well, thankyou.
Speaker 1 (04:22):
So the score normally is that we ask you to introduce
yourself, so can you, of um,tell the listeners who you are,
what you do and why you're onthe podcast, if that's okay?
Speaker 3 (04:31):
sure, yeah.
So, um, I'm, I'm a patentlitigator, so uk, uk qualified
um, also dual qualified inireland.
Now, um, and I'm for 20 yearsnow I've been patent litigation
specialist in the uk but also anawful lot of, um, kind of
European, pan-european patentstrategy advice.
I'm based at HGF, so I'm in themixed model firm that we have
(04:53):
in the UK and working with ahuge team of patent attorneys on
the patent litigation side ofthings.
Yeah, that's my and I.
You didn't, you didn't actuallyforewarn me about your, your
discussion and where you'd been,but I I have to tell you that
I'm dual national Canadian.
Oh, I did it.
I did, in fact, learn to drivein Canada, so I'm I'm very well
(05:13):
aware of the rules of stoppingfor a pedestrian when they're
300 yards away from you, whichdoesn't apply in the UK.
Speaker 1 (05:19):
I can tell you that yeah, no, I had to check it.
So we went out for dinner withthe canadian uh, with the epic
board, probably second eveningwe were there and it was so
unusual I had to ask is you know?
Is this, is this real?
You know?
Am I experiencing this?
I am expected to stop and crossthe road.
Yeah, yeah, yeah.
If you don't, if you don'tcross the road, we'll hate you
yeah, you have to say sorry ifyou don't.
Speaker 3 (05:40):
That's definitely the rule.
Speaker 1 (05:41):
I spent a lot of time with my hand like people
listening can't see this with myhand in that kind of like hey,
hello.
Sort of like raised right, I'vebeen saying thank you for
letting me cross the road, oryeah, no, not crossing yeah so
we're here to talk about allthings upc, particularly on the
sort of practical side of it.
So I'm going to ask my learnedcolleague william roberts to um
(06:04):
to lead on this one, if that'sOK, gwilym.
Speaker 2 (06:06):
I'm very happy, as expected, not a problem, and I'm
going to do what we normally do, which is we're going to start
at the beginning.
So, rachel, can you talk alittle bit about how you got
into litigation in the firstplace, your experiences and so
on?
Where did it all start?
Speaker 3 (06:21):
Where did it all start?
Where did it all start?
So I, not unlike an awful lotof IP solicitors, particularly
on the patent side, have got ascience background but
discovered fairly early on thatthe lab was not for me, but do
love the science side of things.
So when looking at law, verymuch attracted to IP, and I
trained at a big internationallaw firm with a really strong
(06:43):
patent litigation team, at a biginternational law firm with a
really strong patent litigationteam, and really that's what
I've been doing patents andother IP rights for about 20
years now.
And the UPC because we're hereto talk about UPC and kind of
what's been happening.
Obviously we've been watchingthat for many, many years with
the stops and starts, and one ofthe things that I've always
(07:07):
sort of been been part of ispan-European patent litigation
strategy and the UK inparticular is it very much plays
a sort of pivotal role in thatand always has, and so you know
we were.
We could see the rules beingbuilt, we could see all these
tools that you know previouslywere only available in X country
versus Y country comingtogether in this very exciting
(07:27):
toolbox and a kind of mix ofcivil and common law, obviously
because at the time the UK wasstill very much driving forward
the development of the rules andyeah, so it's sort of been a
natural progression to now beinginvolved.
Now that UPC has launched,being involved in UPC litigation
(07:48):
and kind of you know it is, Ithink we really did hope
actually it would be verysuccessful and I think after the
first year it has really shownto be very successful and will
be.
It is a generational change inwhat European litigation looks
like and it is something thateveryone, irrespective of
whether you know you're going tobe involved or not, does need
(08:10):
to be aware of because it willimpact on patent practice and
patent litigation in Europe.
Speaker 2 (08:17):
So, starting, bear in mind that we have an audience
from all kinds of differentbackgrounds, from litigators
down through to people who thinkIP is interesting, want to
learn a bit more.
Maybe take a quick step backand just kind of talk about the
regime before and after theintroduction of UPC as a starter
, and then we can build up tosome of the core strategic stuff
(08:41):
.
Speaker 3 (08:41):
Yeah, sure.
So I mean it's often quite ashock, particularly for anyone
who's outside of Europe.
The sort of the status quobefore the UPC went live is you
go through most people gothrough the European prosecution
as a sort of single process andobviously there's the
opposition process separatelyonce it's been granted.
(09:02):
But once it's granted it'svalidated as a bundle.
And the way that the systemworked previously was, once you
had a validated set of patents,any kind of validity
infringement issues were dealtwith primarily by the national
patent courts and that couldhappen in parallel with ongoing
opposition proceedings or, youknow, sometimes oppositions
(09:25):
might go first and then you'dlitigate afterwards.
And I think it's quitedifficult for people coming into
it to.
Really it's quite a shock.
I think that you know they'llcome in and they'll say, ok,
well, tell me how this pattern,what might happen in Europe.
And of course you've got tobreak it down and say, well, you
know, this could happen in theUK, this could happen in Germany
(09:46):
, this could happen in Europe.
And of course you've got tobreak it down and say, well, you
know, this could happen in theUK, this could happen in Germany
, this could happen in France,and and it would all happen on
different time scales and andthey would say, bang on a second
, you've got, you've got thesame underlying law, you've got
the European Bank Convention andwe'd say, yes, but although
although you know it's the samelaw, there are a lot of areas
(10:06):
where obviously the differentnational courts are not
particularly harmonised onissues.
You know whether that'sdoctrine of equivalence, you
know the test that they applyfor inventive step and, again,
also potentially differsdepending on which country
you're in, from what peoplewould experience, what patentees
and people looking to go theirway would experience with an
(10:28):
opposition, for example.
So that's sort of where we are.
We've got the basic underlyinglaw but actually people did have
to understand that things workdifferently in different
countries depending on what wasimportant.
The UPC and this is where wehope it will be, you know, sort
of three to five years out fromthe UPC starting, the real
(10:52):
rationale behind is it shoulddrive proper harmonisation in
terms of a UPC way of doingthings.
So when someone says kind of,what's going to happen in Europe
, you will actually be able togive them hopefully a clearer
answer about their prospects ofsuccess, whether it's enforcing
or defending, obviously thereare people, there are countries
(11:13):
like the UK that are outside ofthe UPC's jurisdiction.
But what has always happenedwith the key patent courts, even
the national courts, is,although there's no obligation
to take on board what adifferent national court has
done, the judges at that levelare very respectful of other
courts and what they've got tosay, and particularly the
(11:36):
specialist jurisdictions, and sothere should in fact be an
influence and we would hopefullydrive harmonisation in terms of
the big items that arecurrently different.
The other big thing as well andit's a very practical thing is
timing was very different indifferent courts.
You had the very fast court, sothe UK is fast, germany
(11:59):
infringement is fast and theDutch courts are fast, but other
jurisdictions are much slower.
Or with the bifurcated system inGermany, you know, nullity
wasn't an option until anyopposition proceedings had
happened, and that can leavepeople in a position where they
were waiting several years toget decisions back, and now the
(12:21):
very ambitious timetable that'sbeen set in UPC proceedings is
12 months to a first instancetrial.
Currently that's what'shappening and it is a huge
difference for many, manyjurisdictions.
So you know, equally you canalso get revoked very quickly if
you're a patentee, but you getclarity in a much faster
(12:41):
timeframe under the UPC you getclarity in a much faster time
frame under the UPC.
Speaker 2 (12:47):
So previously, yeah, you had a European patent and it
was validated in six or sevenEuropean countries and you
wanted to actually stop somebodyinfringing it.
As we all know, you had to goand see them in all those
countries and then suddenly, atleast for the UPC countries and
let's not go into which onesthey are, it's mostly important
ones, except the UK Now you cantake a single action rather than
five or six, which is great,and that means, I guess, that
(13:08):
it's a very powerful tool interms of pan-European
injunctions.
Suddenly, I'm right in thinkingthat, well, okay, I do know,
but basically you can suddenlytake a single action and stop
infringement across a hugeswathe of countries.
That's right, isn't it?
Speaker 3 (13:24):
Yeah, that's correct.
I mean this is the big stick,this is the big incentive really
for patentees coming into thesystem.
And obviously the question thatwe were looking at for the
first year is how willing andwhat terms will injunctions be
granted?
And we found very found on.
Very early on the Munich localdivision granted a preliminary
(13:48):
injunction on a unitary patent,so it covered all all at the
time 17 countries.
That was actually overturned onappeal.
But I think we have justrecently, actually in the last
couple of weeks got the firstpreliminary injunction that has
been upheld by the UPC's Courtof Appeal and we've seen quite a
few PI decisions where a PI hasbeen granted.
(14:13):
We've also seen real scrutinyof the validity of the patent,
the way that the infringementhas been framed.
So what has come out in thefirst year is the seriousness
with which the UPC courts aretaking the assessment of
infringement and validity, eventhough it's not a full
(14:35):
proceeding on the merits from avalidity point of view, but it's
important.
And the other big trend thatwe've seen is kind of some
clarity on what the urgency is.
So how quickly do you have toget your action up and off to be
able to actually be granted apreliminary injunction by the
UPC.
Speaker 2 (14:53):
So breaking it down a bit again for the less familiar
with bits of law there.
So the preliminary injunctionsis basically you want to go in
very quickly, very early, andget something, get an injunction
quickly pending a full decision, as it were.
So we've seen those coming outalready.
So basically you've got yourproduct out there and you're
being ripped off and it'scausing you massive problems.
(15:14):
You can go in fast, which isgreat.
I think that's the kind of atool that people need the full
injunction.
Just to clarify you said that afull injunction had been issued
but it was overturned at appeal.
Was it overturned becauselegally they can't get full
injunctions, or was itoverturned because the case
didn't merit a full injunction,kind of thing?
Speaker 3 (15:35):
So the case I'm talking about is it was a
preliminary injunction case andit went up to the Court of
Appeal.
So it was granted at firstinstance, went up to the Court
of Appeal and the Court ofAppeal effectively disagreed
with the first instance coursein terms of they felt it was
more likely that the patentwasn't going to be held to be
valid on a kind of full merits.
So you know that was that.
But we have seen recently apreliminary injunction that has
(15:58):
been granted being upheld by theCourt of Appeal.
Speaker 2 (16:02):
Oh, so the courts are happy to give injunctions in
the right circumstances.
So it's a hugely powerful tooland, to the extent this goes out
in the States and we'rebuilding an American audience, I
think this is something that'sobviously of real interest, and
we'll get on to theinternational perspective in a
minute.
I just want to ask anothercouple of questions about the
UPC and bringing it back alittle bit.
First of all, as you mentioned,you were previously a UK
(16:23):
litigator.
Do you want to paint a pictureof some of the differences
between running litigation inthe UK versus running it at the
UPC?
It's civil versus common law ina sense, isn't it?
Speaker 3 (16:35):
Well, it's interesting you say that.
So the unique thing about theUPC setup is the rules are, in
fact, a very unique blend ofcivil and common law, and that
was obviously developed when theUK was was much more involved
and, although we haven't seenIreland ratify yet, they
obviously are a common lawjurisdiction that we hope will
(16:57):
come into the UPC.
But what we've seen in realityis that the it is currently all
civil law jurisdictions that areparticipating and we've not
seen much uptake or appetite touse the common law tools like
disclosure, expert evidence,cross-examination, for example,
(17:19):
and it has had a much more of acivil law flavour.
So that's the way it looks likeit's going now.
Obviously, that could stillchange because things are still
developing.
Speaker 2 (17:30):
That's interesting because we had that Kevin Mooney
on, didn't we?
We're asking some of thequestions because he was hugely
instrumental in setting this upin the first place and remained
instrumental long after Brexit,brexit, basically because of
just how centrally been taughtand how highly respected he may
still be, highly influential.
Actually, I've known him for alittle while.
(17:50):
One of the questions we havewas obviously we have wonderful
ambitions for this new hybridcourt, as you say, with uk style
and continental styleprinciples and maybe
unsurprisingly, given thatdiminished or, yeah, diminished
involvement, other than the factthat our EPAs can perform that,
it is getting a morecontinental vibe.
(18:12):
A little bugbear of mine is Ihave a little belief that the
European Patent Convention, bythe way, have the same thing.
If you look at the back end ofthe UK, see it's got a whole
bunch of very British stuff init that's never got used.
Do you think there's a chancethat the UK can influence a
little bit more andigators who,primarily through the Irish
route, are very active?
Speaker 3 (18:30):
actually in the UPC and again sort of picking up on
(18:53):
this role that a lot of UK firmshave always had, which is sort
of being the linchpin fornavigating for doing a
pan-European strategy.
The linchpin for navigating fordoing a pan-european strategy.
You know that, whether whetheractually on paper showing as upc
representative, but or or infact being very instrumental in
in how it works with the upclitigation, the uk is having a
(19:16):
huge influence.
I mean, obviously the thebiggest um driver of cases has
been in the German courts and sothere is currently a very
German flavour.
But we are seeing Paris and theHague also, you know, really
handing down influentialjudgments as well.
But we have seen pushback onthings like cross-examination,
(19:37):
for example, use of experts, notsort of discovery in the same
way or disclosure that we areused to, but it has been a very
rigorous procedure and very fast.
So those sort of the speedthing is making a big difference
, I think, to what thelitigation looks like.
Speaker 2 (20:01):
You mentioned that.
Obviously, things on the faceof it, things got simpler.
Suddenly you can get single um,so you get a single litigate, a
single forum and litigate thereand get your injunction.
For was it 400 million peopleand all that kind of thing?
The reality is it's not quitethat simple still, is it?
We still have nationalproceedings, we still have
(20:22):
oppositions and, of course, wehave the countries outside the
UPC but which are part of theEuropean power system, the UK
being a key one.
So how are you seeing peopleplaying this arbitrage, isn't it
?
There's a lot of options justat the moment.
How are you seeing people playall these different elements to
get the right strategy forEurope?
Speaker 3 (20:38):
yeah, you're absolutely right, it's another
layer of forum shopping.
I didn't say that.
Well, it's true, because youknow that's always the way you
approach, kind of what are wegoing to do?
Is you know where'scommercially important, where's
the activity happening?
All of those decisions are intoplay play.
(20:59):
And obviously we've still goteuropean bundles which can be
litigated in national courtsversus versus unitary patterns
which have to be litigated inthe upc.
Um, so it's added it'scurrently added a layer of
complexity because we are stillseeing people choosing, people
have opted out, so there's stillnational litigation but maybe a
(21:22):
divisionals in the UPC andthat's that's really for very
sophisticated players who've gotdeep pockets.
And the other thing that we haveseen in the first year with the
UPC is people trying to seewhere the boundaries are of the
rules.
And so you know we've seen hugeamount of procedural decisions,
(21:44):
appeals on procedural decisions, because people are testing the
boundaries.
You know what is appropriate,what is going to be the upc way
of doing things, and on thesubstantive law, you know what,
what does the upc law look like?
And people presenting, you knowsome people just well, it's
going to be like the german.
And then other people sayingyou know it's here's the, here's
the dutch way, here's thefrench way, here's the german
(22:06):
way.
And then you know, and mostpeople, I guess, would say well,
let's pick the way that suitsour case the best and the other.
The other area of tension aswell, particularly on the
validity side, is you knowwhat's the role of the epos
problem solution approach,because that's done differently
in different national courts aswell.
So all of that in the firstcouple of years, I think is
makes it more complex.
Hopefully it will driveharmonization and we will get a
(22:29):
UPC way of doing it and then itwill become more accessible to
those who you know don't havesuch deep pockets.
But that said, willem, what whatI found quite interesting is is
you know there's moremedium-sized, medium-sized
entities, entities who they'vegot an issue and they're really
frustrated and they want to beable to perhaps stop
(22:52):
infringement.
And the UK is one of the mostexpensive jurisdictions and they
don't want to pay the millionpound plus that you're with the
potential cost risk as well ifyou lose for one jurisdiction.
But when you're talking about17, now 18, versus the relative
cost and it can be done on arelatively sort of size the good
(23:17):
value it's not cheap but goodvalue for the amount of
jurisdiction that you'recovering suddenly those
companies that wouldn't havebeen interested before or might
have just perhaps done a Germanlitigation now can say well,
hang on, for the same price as aGerman litigation I can get an
injunction in 18 countries.
So there's differentconsiderations for the smaller
(23:41):
companies as well, which againwas the Uc was supposed to be
sme friendly.
Whether it is or not um remainsto be seen.
But.
But certainly there's interestin the mid, the mid-size um
firms where they wouldn't havenecessarily done so before I
thank you.
Speaker 2 (23:59):
That was actually.
Yeah, I've got lots ofquestions coming up your, your,
your points here.
But what?
The first one was that smething and the upc was built as
oh, it's the future for smes.
I don't think anybody, I don'tthink anybody ever believes that
.
It's really sad.
Um, uh, you mentioned deeppockets and we'll get to deep
pockets, but there'smiddle-sized pockets too, which
is something very important.
I suppose it was.
(24:20):
It was built in this way.
But I think what I'm hearing isis that, you know, maybe not
your kind of you know, yourlittle flower shop might
struggle, but somebody with adecent business, with a product
in Europe, they don't have tohave those super deep pockets to
use the UPC.
It is fit for purpose at thatlevel.
Speaker 3 (24:35):
Yeah, and there are discounts available in terms of
the court fees for SMEs as well.
So you know, if you can showthat you fall within the
definition, you do get quite asubstantial discount.
And there is also theavailability, you know, if you
issue and you settle at certainstages you can get some of the
kind of upfront court fees backtoo.
(24:55):
So there are some incentivesthere.
Right now it's, I think, quitedifficult because it is a bit
wild west whilst things arebeing tested and things settle
down.
But but you know when, whenthat, when that works out, I
think it will be attractive.
Um, if the business reason, thecommercial reasons, are there to
do it, then then it could be areally efficient way of.
(25:17):
It won't be as cost effectiveas an opposition, though I think
that's sort of still also avery important part of of and
from my point of view I alwaysthink of oppositions as another
jurisdiction, because it'sanother really important place.
It is a litigation, because it,you know, there's complete
knockout, um, so yeah, it's,it's balancing alongside that
(25:38):
kind of route.
Speaker 2 (25:38):
I always fond of the wild west analogy.
In the end, I mean, I guess thewild West is always policed by
a bunch of sheriffs.
I do feel that our judges atthe UPC they're good.
So you know, in the end I'msure they talk to each other,
and so that's good news.
Speaker 1 (25:56):
Just to prove that I'm here and I'm listening,
Willem.
When we first launched ourawareness raising programme
around UPC and the role that UKlitigators would have in it,
President Matt Dixon did, ofcourse, refer to us as guns for
hire.
Speaker 2 (26:13):
Honestly, the analogies go on and on.
Speaker 1 (26:17):
I'll be quiet again.
Speaker 3 (26:18):
Matt's right, because one of the big things I think
kind of on a practical level isbecause of the timescales and
how much work is involved inthese litigations, the size of
your team, the depth of yourparticularly on the technical
expertise, how quickly you haveto turn things around if you're
a defendant, for example, ofUK-based European patent
(26:41):
attorneys, particularly with theEnglish language really coming
to the fore.
The technical expertise, thelanguage skills, the knowledge
of the law is really useful.
So that is something thatdefinitely the UK can sell and
you know, and we're used todoing that as a sort of you know
, the US comes into the UK quiteoften.
(27:01):
So you know, and currentlyworking with local co-counsel as
well, whilst things settle down, you have an uncanny ability to
predict my next question, whichwas the international elements.
Speaker 2 (27:13):
So when I heard some commentary from the US that,
given that some US parents willseem to feel that the US is a
bit anti-patent at the momentyou can't get injunctions,
there's all these kind ofchallenges available at the
USPTO and everything that theUPC is being looked at as a
potential alternative startingpoint for kind of a global
(27:35):
strategy, is that something youthink is?
Is that, is that a commonlyheld thought?
Speaker 3 (27:39):
yeah, no, I think it is.
It is very much because of um,the jurisdiction, territorial,
the territorial area, the, thevalue of the market that's being
covered.
It suddenly looks, not quite atthe level of the US, but
similar to the US, and whatwe're seeing is that validity is
(28:00):
being very carefullyscrutinized.
So you do have to have a goodcase, but then, equally, there
is a willingness to grantinjunctions, which in the US,
preliminary injunctions aretricky, and and also, when you
look at the cost of litigationin the UPC versus the cost of
(28:21):
litigation in the US, there is ayou know it's, it's a lot, a
lot less and it's and it'scurrently a lot, a lot quicker.
You know the.
If you go into district courtlitigation or even ITC
litigation, itc is minimum 18months.
District court you're lookingat years and here we're talking
(28:42):
about a really high qualitydecision on infringement
validity within 13, 13 months,14 months thank you.
Speaker 2 (28:53):
That's kind of it's good to hear that corroborated
because it's an excitingdevelopment, but I think it does
bring I've also heard somepotential risks in terms of the
the strength of the forum andthe attractiveness of it, and
they're kind of, you know, alevel playing ground, let's say,
on validity.
There were fears at the outsetthat it would therefore become a
(29:14):
bit of an mpe playground.
That would be very attractiveto businesses who litigate for
their business to come to europe, because it's such a powerful
sanction that people are likelymore likely to settle instead of
giving them money and back up,which is, we know, a huge
problem in the states.
Is there a risk?
Well, are we seeing that riskmaterializing, that we're going
to see more litigation as sport,if you will?
Speaker 3 (29:38):
one.
That was a fear.
Definitely.
That was in the minds of the umcommittee who were drawing up
the rules, and it's one of thereasons why we have cost
shifting um for a kind of loserpays principle not not on the
same level as as the uk, but ona on a sliding scale.
There's, you know, if you losethen you will have to pay some
(29:58):
fees and part of that was todeter just just kind of
non-practicing entities using itto um using as a big stick to
scare people.
We are seeing, we are, we haveseen some activity, activity
from the non-practicing entities.
Not that much, you know, that'snot really been the main part
(30:21):
of it.
We have seen some settlementsin that area.
I don't.
Yeah, it's hard to know.
It's hard to know.
What we haven't really seen, orhaven't seen visibly, is the
role of litigation funders,which obviously is one of the
big, big sort of drivers fornon-profit entities in the US.
We'll see.
(30:41):
I think the cost, the costsanctions will put people off to
a degree, unless they thinkthey really do have a good case.
Speaker 2 (30:49):
Which is a good thing , because I'm not surprisingly
pro-IP.
But it does worry me thatthere's some areas where it can
be gained, and I think notnecessarily on policy.
So I'm pleased that we've gotsome provisions in place that
block it.
I've got one more, lee, andyou're back in the game.
My friend and I was to askRachel, so we talked about the.
Upc is a new forum.
(31:09):
It's got new law.
It's a mix of lots of nationallaws.
There's some British influenceand common law influence.
You mentioned theproblem-solution approach, the
EPO's favour and everything.
What's your prediction forwhere the law is going to set up
?
Is it going to be a completelyfresh look at IP law or is it
going to be very German, forexample, where is it going to
sit?
Speaker 3 (31:34):
example, where is it going to sit?
Well, I, what I my hope, my hope, is that um and I have heard,
uh, on various various um sortof panel discussions where the
judges have been talking aboutthis particular issue that they
take the best of everythingbecause this is the opportunity
to do it.
You know, even even you know, agerman judge, for example, will
have some areas of the lawwhere they think actually that's
we've not, as a national court,gone the right way on that, for
(31:56):
whatever reason, and or, youknow, we've seen the Dutch court
do this and actually we likethat.
So my hope is that you know itwill be the best practices and I
think certainly the judges youmentioned earlier, the judges
very much are talking to eachother, they're learning from
each other.
I mentioned we did the firstsaisie in front of the Paris
(32:20):
Circle Division and we know thatthat was being watched by many,
many of the other judges, justto see what that looked like,
because, of course, the Parisjudges have got the most
experience in that area at thenational level.
Yeah, so I think I, my hope isthat it will, it will take the
best of things, um, you know,including epo and and across all
(32:43):
of the courts that are involvedlee you're gonna want me to
come in now, but aren't you Comeon, we've missed you, you've
almost
Speaker 1 (32:52):
exhausted it, gwilym?
I wouldn't know.
So the sort of things I'minterested in aren't really the
practical stuff though, rachel.
So it's more your feeling forhow things are going, and so I
was.
Well, whilst we've been talking, I've been looking back at when
we did our sort of first pieceof awareness raising around this
.
We introduced the concept ofthere being sort of seven
(33:13):
reasons why uk patent attorneyswill be at the forefront of the
upc.
So first question are uk patentattorneys at the forefront of
the upc?
Speaker 3 (33:22):
I.
Well, I I have to say I to befair to the germans the germans
have done very well thus far, so, um, I think it would be unfair
to say that they're not reallyreally driving forward just
because of the way where thecases have landed.
Uk patent attorneys and UK firmshave very much been involved in
(33:43):
the development of the UPC inthe first year.
I think we've had a very stronginfluence on developments so
far in cases and you know we'vealways worked you know the UK
profession has always worked ininternational teams, whether
that's within firms or, you know, with co-counsel in the
(34:04):
different national courts, and Ithink that's what we've seen
and it's been a very it has beena really exciting time and
almost questioning, you knowwhat you know from before and
actually, okay, well, do we haveto do it like this?
Is there another way of doingit?
Did the Dutch do this betterthan we do?
Or, you know, actually wereally want to push how we see
this.
(34:24):
That has really been very muchpart of the conversations that
we've been having on cases thatwe've been having on cases.
Speaker 1 (34:31):
So the other thing that crossed my mind whilst we
were talking is the.
So we hear in the conversationsthat we have that maybe the
courts aren't so enthusiasticabout EPAs as litigators.
Is that something you've pickedup on or is that just noises
coming out of the courts?
Speaker 3 (34:50):
I think I mean.
So.
If you look at the way thecourt is set up, it's a very
kind of German or Dutch model,which has always been a
litigator with a patent attorneyand, the way you know, in the
past, when we've sort of gone tohearings in the German courts
or the Dutch courts, the courtwill.
It's very short hearings.
So the judges are like okay,we've read your voluminous
(35:14):
pleadings, we are interested inxyz and and, as has always been
the case in terms of kind oflitigation, when you, you know,
before the dutch court, forexample, if one of the points is
added matter, then it is goingto be your epa who is doing that
discussion and and you know, ifthere's a particular technical
point.
(35:34):
So I I I'm not sure that's thecase in terms of as litigators.
I think it is.
It is a, it's a team sport,litigation is a team sport and
what we, what has been reallynecessary across the litigation
so far, is big teams, and Ithink epas are a very crucial
part of that, including at theoral hearings.
Speaker 1 (35:55):
Yeah, I think I'm done grill them.
I think those are the only sortof things that crossed my mind
while, um, whilst we weretalking, I have one more
question then of course you do.
Of course you do.
This isn't your closer, is it?
Speaker 2 (36:05):
no, no, no, no, no, no, no, no.
Um what science degree uh cellbiotechnology genetics.
Genetics and microbiology yes.
Squishy things.
That's a clever one.
Squishy things.
I get that.
I was obviously hoping you'dsay physicist, but I just always
say that yeah you always saythat.
Speaker 3 (36:22):
No, I went for the soft sciences, Gwilym.
Speaker 2 (36:25):
The squishy sciences yeah.
Speaker 1 (36:28):
Well, gwilym, we're back on 40 minutes because you
know, one of my jobs is to sortof keep an eye on the time.
So we're back on 40 minuteswhich is usually a good length
of podcast for us.
Um so, rachel, we normallyfinish with some kind of really
highbrow intellectual closer.
No, no, we don't we normallyfinish with some kind of
extraordinarily trivial closerand not.
But normally it's my job to dothat.
But I got a message reallyearly on in the chat from Gwilym
(36:51):
saying oh, I've got a closer,don't bother thinking about one.
So the way this works is he'sgoing to ask me, which gives you
time to think about your answer, you're going to answer, and
then we throw it back at Gwilymas if he didn't know it was
coming back at him.
I've given the game away toGwilym.
Speaker 2 (37:14):
Maybe about?
No, no, don't.
By the way, did you have youcome across the word kayfabe,
the word what kayfabe spell?
I think I don't know.
Actually, I think it'sk-a-y-f-a-b-e, kayfabe.
No, so it's a really cool thingthat apparently comes from
fairgrounds originally and it'sa pretense that everybody
actively buys into, like thetooth fairy and that kind of
thing, oh, okay, and all aspectsof wrestling.
So this is effectively akayfabe, it's a kayfabe Okay.
(37:36):
Great phrase.
Speaker 1 (37:37):
I know exactly what they mean.
The moment you say it, you knowwhat it means.
You know I'm Googling that themoment we finish.
Speaker 2 (37:42):
I could be wrong actually this could be the
kayfabe I made it up Right, somy closer First it goes to Lee.
I haven't actually announcedmyself in gold, which I thought
was true.
So at the very beginning wetalked about Newfoundland and we
talked about Canada and wetalked about dual nationality.
So, lee, I don't believe youhave dual nationality.
Speaker 1 (38:03):
I don't have no.
Speaker 2 (38:05):
If you did, what would your other one?
That's quite good, isn't it?
Speaker 1 (38:11):
We've not done this one.
That's quite good, isn't it?
We've not done this one.
That's such a cool question.
If we did, what would my otherdual nationality be?
God blimey.
I am sort of semi-stumped.
I'm sort of thinking German,because I've always quite liked
Germany and despite my sort ofreally bad attempts to learn the
language, that would perhapshinder me.
(38:32):
So maybe I'd have to gosomewhere that was English
speaking.
I love Canada, but that wouldbe like I'm sort of creeping too
much with Rachel having dualnationality, wouldn't it?
So I probably can't say Canada,new Zealand, I'll go New
Zealand, yeah, yeah, yeah, I'llgo New Zealand.
Kiwi Davis, yeah, good good afeel to it.
Speaker 2 (38:54):
Rachel, if you could have another I assume you've
only got dual right if you had athird, what would your third
nationality be?
Speaker 3 (39:00):
well, it would be Irish.
Actually, I'm in the veryannoying situation of going back
sort of a generation and a halfand pretty much being entirely
Irish family, but yet not quitequalifying for the Irish
passport post-Brexit.
So if I could reclaim my Irishroots I would love to do that.
There we go.
Speaker 2 (39:21):
Excellent.
Speaker 1 (39:24):
Oh, there's somebody else in the room.
Yeah, go on, then.
I forgot you were there.
Oh, yes, me Right, sorry, yes,so back at you, back at you.
Speaker 2 (39:32):
Well, I mean, as you know, really I never stopped
talking about my fervent Welshnationalism and I still regret
the union.
Speaker 1 (39:42):
But hang on, if you were a fervent Welsh nationalist
, you would say there was nevera union.
Of course.
Speaker 2 (39:47):
Exactly exactly.
Speaker 1 (39:48):
It was an invasion and an occupation.
Speaker 2 (39:50):
So I'm going to declare my existing dual
nationality as British and Welsh.
Speaker 1 (39:55):
There you go yeah, I can't do that, because if I
declare my Welshness Charlotte,my exec assistant always rips
into me hugely saying you'rejust a fake Welshman Davis, me
too, me too that's exactly whatI am yeah, so I steered away
from that one because it'll getme into trouble if it ever gets
heard in the office.
Not anyone listens to thepodcast in the office group.
(40:17):
Oh, rachel, thank you so muchfor coming on and sharing your
experiences at the UPC, so thishas been recorded just shortly
before SEPA Congress.
So you're going to do thisagain for us next week at
Congress.
Speaker 3 (40:27):
Yes, with a really exciting panel.
Speaker 1 (40:30):
Yeah, and this will go out after Congress, so we
would have had the benefit ofyour experiences there as well.
Really looking forward to that,gwilym.
I'll see you on the next one,mate, but I probably need to say
to you that, as this is thefirst one in the series, we've
got a new jingle.
How exciting is that?
It's a jingle that's reallypersonal to you, isn't it?
Speaker 2 (40:51):
Absolutely, it's double exciting.
Uh, it's quite cool.
The jingle, um, I think Iabsolutely love it.
We have we have a cut from itat the beginning and then, uh,
listening in, at the end you'llhear the whole thing.
But yeah, well, my son wrote it.
He's a very talented musicianand he's very good at putting
things together and it's superprofessional and absolutely
everything on it is him playinginstruments with some fancy
(41:14):
music mixing program, except forone bit which is me singing Lee
and Gwilym R.
So there you go, I'm part of,I'm part of the experience,
which I'm proud of.
Speaker 1 (41:24):
I really love it.
I love the bit.
I love the bit that we'vesnicked out for the, for the
intro, and it's great that we'regoing to hear the whole thing
at the end and um, and we'regoing to, we're going to do a
podcast on music when we'regoing to talk about the jingle
as well, so some piece of pointin the series.
Hopefully we're going to getlittle grill.
Speaker 2 (41:37):
I'm on he's not that little.
Speaker 1 (41:38):
He's a lot bigger than big william yeah, they do
help grow, you, don't you?
Oh, yeah, I found that withmine.
Speaker 2 (41:46):
I should name check him it's billy billy roberts.
Speaker 1 (41:49):
Well done, bill, yeah yeah, yeah, so, yeah, so, be
good, be good to get him on whenwe're talking about music.
So, yeah, thanks again, racheland um, I'll catch you on the
next one, but before I go, whatshould people do if they've
enjoyed this podcast?
Can you remember?
Speaker 2 (42:03):
go for a swim, yeah, that's the second thing.
Speaker 1 (42:06):
They should do this.
All right, sorry, what was?
Speaker 2 (42:08):
it.
What was it?
I don't you know it.
Speaker 1 (42:10):
Yeah, go for it, leave us a review On the
podcasting platform of theirchoice, because you know that's
how people find new podcasts isthey look at reviews and
hopefully we'll grow theaudience that way.
Speaker 2 (42:22):
Actually, if you just leave us a review, whatever
you're reviewing anywhere, canyou also add on?
Although it wasn't very good, Irecommend you listen to Two IPs
in a Pod.
Speaker 1 (42:30):
Yeah, yeah, on other people's podcast reviews.
Yeah, leave it on otherpeople's.
So I'm going to go on the restis history immediately after
this and leave a review aboutTwo IPs in a Pod.
Speaker 2 (42:43):
Let's go viral.
That's how you do it.
Let's work it.
Thanks both.
Speaker 3 (42:47):
Thank you.
Bye guitar solo, outro Music.
Hey, gwilym, welcome back.
We've both been away from thepodcasting world for a couple of
months, I think.
Speaker 2 (00:06):
It's amazing what happens.
What do you do?
What's going on?
Speaker 1 (00:09):
I don't know.
I live outside of the screenbox because I've got used to
seeing myself.
So yeah, it's been a couple ofmonths since I've actually seen
you.
You only exist in this worldnow for me.
Speaker 2 (00:23):
We had noodles.
Speaker 1 (00:24):
Oh, we did have noodles.
Yeah, we went to the noodle bar.
That was good.
I've just got back from Canada.
I've just been to the IPIC, theIntellectual Property Institute
of Canada's annual conference,so that was really cool last
week.
Speaker 2 (00:36):
Do you know what that brings?
A really good question.
I've always wondered how do youpronounce where you went St
John's?
No, I can pronounce that bit.
No, the three words they puttogether are new found and land.
Speaker 1 (00:53):
So I've had lots of Canadians laughing at me all of
last week because I obviouslypronounce it in the way that I
pronounce most things in the waythat it's spelt.
So yeah, newfound land, no,newfoundland.
Speaker 2 (01:04):
I thought it was Newfoundland.
No, newfoundland, newfoundland.
I thought it was Newfoundland.
That's a very British thing todo, though, isn't it?
Speaker 1 (01:09):
They seem to take all of the vowels out is the way
you pronounce it.
So I thought I did find overthere and I haven't necessarily
noticed it in other parts ofCanada when I've been there, but
certainly in Newfoundland theyare the most courteous, kind car
drivers anywhere in the world.
So if they see you anywherenear the curb and they could be
(01:31):
100, 200 yards away they'll stopand even if you're not going to
cross the road, you feelobliged to cross the road
because they've stopped.
So I found myself zigzaggingacross the road because cars
kept.
And apparently that's just howthey work out there.
They respect the pedestrian.
The pedestrian comes first.
If you're standing on a streetcorner, all of the traffic will
(01:51):
stop so you can cross the road.
It's nearly got me killed inLondon this week because I've
forgotten that I've got back toLondon.
Speaker 2 (01:57):
Can you imagine, how many cars are there Not?
Speaker 1 (02:00):
many to be fair.
Speaker 3 (02:01):
I Not many.
Speaker 2 (02:01):
To be fair, I was going to say it's like three
yeah, wow, yeah, because I'vedone the opposite in Vietnam,
where you just walk and don'tlook and the cars swerve around
you, which is the almost exactopposite.
I'll just go quickly to thelack of vowels.
So what would your name be ifwe took all the vowels out?
Lidavus, see, mine doesn'tchange.
Speaker 1 (02:32):
Rubits, rubits, rubits.
But on the more serious side,really good to catch up with the
Canadians.
We have a great relationshipwith our Canadian colleagues.
Speaker 2 (02:41):
You'll remember they came on the podcast when we were
in Atlanta.
Speaker 1 (02:42):
So it was great to catch up with Paula and Kat, who
were our guests then.
And, yeah, fascinating weeklooking at things like how
regulation's going in Atlanta.
So it was great to catch upwith Paula and Kat, who were our
guests then.
And yeah, fascinating weeklooking at things like how
regulation's going in Canada.
So they've had their equivalentof IPREG in place now for sort
of three or four years.
So it's good to see how that'sgoing and to be reminded of all
of those painful teethingproblems that you have when you
(03:03):
bring on a new regulator, anindependent regulator, for the
first time.
Spend some time looking atprivilege in canada, because
that's an issue that we'veattorney, uh, agent privilege
that's something we've beenworking with with a pick on,
because that's, um, that'ssomething that agents don't
currently enjoy in canada'sprivilege because of recent
rulings.
Yeah, and obviously we talkedabout cptpp.
How could I go to canada andnot talk about the comprehensive
(03:25):
and progressive agreement oftrans-pacific partnership?
so that's, so well say it soI've lived it for so many years
well, we're in now, aren't we?
Speaker 2 (03:33):
no, peru, thank you, thank you, peru.
Speaker 1 (03:37):
So um, yeah, no yeah yeah, big up to peru for um, for
being the final.
Are you a ratifyee?
Is that what you are if youratify something?
But yeah, for ratifying andallowing the UK to join.
We really ought to get Rachelon, because I'm conscious that
she's sat there listening to us.
Speaker 2 (03:52):
Oh, that's what you do in podcasts, isn't it?
Speaker 3 (03:54):
Yay, that was it, lee Davis and Gwilym Roberts are
the two IPs in a pod and you arelistening to a podcast on
intellectual property brought toyou by the Chartered Institute
of Patent Attorneys.
Hey, rachel, hello, how are you?
(04:20):
Hello, hello, very well, thankyou.
Speaker 1 (04:22):
So the score normally is that we ask you to introduce
yourself, so can you, of um,tell the listeners who you are,
what you do and why you're onthe podcast, if that's okay?
Speaker 3 (04:31):
sure, yeah.
So, um, I'm, I'm a patentlitigator, so uk, uk qualified
um, also dual qualified inireland.
Now, um, and I'm for 20 yearsnow I've been patent litigation
specialist in the uk but also anawful lot of, um, kind of
European, pan-european patentstrategy advice.
I'm based at HGF, so I'm in themixed model firm that we have
(04:53):
in the UK and working with ahuge team of patent attorneys on
the patent litigation side ofthings.
Yeah, that's my and I.
You didn't, you didn't actuallyforewarn me about your, your
discussion and where you'd been,but I I have to tell you that
I'm dual national Canadian.
Oh, I did it.
I did, in fact, learn to drivein Canada, so I'm I'm very well
(05:13):
aware of the rules of stoppingfor a pedestrian when they're
300 yards away from you, whichdoesn't apply in the UK.
Speaker 1 (05:19):
I can tell you that yeah, no, I had to check it.
So we went out for dinner withthe canadian uh, with the epic
board, probably second eveningwe were there and it was so
unusual I had to ask is you know?
Is this, is this real?
You know?
Am I experiencing this?
I am expected to stop and crossthe road.
Yeah, yeah, yeah.
If you don't, if you don'tcross the road, we'll hate you
yeah, you have to say sorry ifyou don't.
Speaker 3 (05:40):
That's definitely the rule.
Speaker 1 (05:41):
I spent a lot of time with my hand like people
listening can't see this with myhand in that kind of like hey,
hello.
Sort of like raised right, I'vebeen saying thank you for
letting me cross the road, oryeah, no, not crossing yeah so
we're here to talk about allthings upc, particularly on the
sort of practical side of it.
So I'm going to ask my learnedcolleague william roberts to um
(06:04):
to lead on this one, if that'sOK, gwilym.
Speaker 2 (06:06):
I'm very happy, as expected, not a problem, and I'm
going to do what we normally do, which is we're going to start
at the beginning.
So, rachel, can you talk alittle bit about how you got
into litigation in the firstplace, your experiences and so
on?
Where did it all start?
Speaker 3 (06:21):
Where did it all start?
Where did it all start?
So I, not unlike an awful lotof IP solicitors, particularly
on the patent side, have got ascience background but
discovered fairly early on thatthe lab was not for me, but do
love the science side of things.
So when looking at law, verymuch attracted to IP, and I
trained at a big internationallaw firm with a really strong
(06:43):
patent litigation team, at a biginternational law firm with a
really strong patent litigationteam, and really that's what
I've been doing patents andother IP rights for about 20
years now.
And the UPC because we're hereto talk about UPC and kind of
what's been happening.
Obviously we've been watchingthat for many, many years with
the stops and starts, and one ofthe things that I've always
(07:07):
sort of been been part of ispan-European patent litigation
strategy and the UK inparticular is it very much plays
a sort of pivotal role in thatand always has, and so you know
we were.
We could see the rules beingbuilt, we could see all these
tools that you know previouslywere only available in X country
versus Y country comingtogether in this very exciting
(07:27):
toolbox and a kind of mix ofcivil and common law, obviously
because at the time the UK wasstill very much driving forward
the development of the rules andyeah, so it's sort of been a
natural progression to now beinginvolved.
Now that UPC has launched,being involved in UPC litigation
(07:48):
and kind of you know it is, Ithink we really did hope
actually it would be verysuccessful and I think after the
first year it has really shownto be very successful and will
be.
It is a generational change inwhat European litigation looks
like and it is something thateveryone, irrespective of
whether you know you're going tobe involved or not, does need
(08:10):
to be aware of because it willimpact on patent practice and
patent litigation in Europe.
Speaker 2 (08:17):
So, starting, bear in mind that we have an audience
from all kinds of differentbackgrounds, from litigators
down through to people who thinkIP is interesting, want to
learn a bit more.
Maybe take a quick step backand just kind of talk about the
regime before and after theintroduction of UPC as a starter
, and then we can build up tosome of the core strategic stuff
(08:41):
.
Speaker 3 (08:41):
Yeah, sure.
So I mean it's often quite ashock, particularly for anyone
who's outside of Europe.
The sort of the status quobefore the UPC went live is you
go through most people gothrough the European prosecution
as a sort of single process andobviously there's the
opposition process separatelyonce it's been granted.
(09:02):
But once it's granted it'svalidated as a bundle.
And the way that the systemworked previously was, once you
had a validated set of patents,any kind of validity
infringement issues were dealtwith primarily by the national
patent courts and that couldhappen in parallel with ongoing
opposition proceedings or, youknow, sometimes oppositions
(09:25):
might go first and then you'dlitigate afterwards.
And I think it's quitedifficult for people coming into
it to.
Really it's quite a shock.
I think that you know they'llcome in and they'll say, ok,
well, tell me how this pattern,what might happen in Europe.
And of course you've got tobreak it down and say, well, you
know, this could happen in theUK, this could happen in Germany
(09:46):
, this could happen in Europe.
And of course you've got tobreak it down and say, well, you
know, this could happen in theUK, this could happen in Germany
, this could happen in France,and and it would all happen on
different time scales and andthey would say, bang on a second
, you've got, you've got thesame underlying law, you've got
the European Bank Convention andwe'd say, yes, but although
although you know it's the samelaw, there are a lot of areas
(10:06):
where obviously the differentnational courts are not
particularly harmonised onissues.
You know whether that'sdoctrine of equivalence, you
know the test that they applyfor inventive step and, again,
also potentially differsdepending on which country
you're in, from what peoplewould experience, what patentees
and people looking to go theirway would experience with an
(10:28):
opposition, for example.
So that's sort of where we are.
We've got the basic underlyinglaw but actually people did have
to understand that things workdifferently in different
countries depending on what wasimportant.
The UPC and this is where wehope it will be, you know, sort
of three to five years out fromthe UPC starting, the real
(10:52):
rationale behind is it shoulddrive proper harmonisation in
terms of a UPC way of doingthings.
So when someone says kind of,what's going to happen in Europe
, you will actually be able togive them hopefully a clearer
answer about their prospects ofsuccess, whether it's enforcing
or defending, obviously thereare people, there are countries
(11:13):
like the UK that are outside ofthe UPC's jurisdiction.
But what has always happenedwith the key patent courts, even
the national courts, is,although there's no obligation
to take on board what adifferent national court has
done, the judges at that levelare very respectful of other
courts and what they've got tosay, and particularly the
(11:36):
specialist jurisdictions, and sothere should in fact be an
influence and we would hopefullydrive harmonisation in terms of
the big items that arecurrently different.
The other big thing as well andit's a very practical thing is
timing was very different indifferent courts.
You had the very fast court, sothe UK is fast, germany
(11:59):
infringement is fast and theDutch courts are fast, but other
jurisdictions are much slower.
Or with the bifurcated system inGermany, you know, nullity
wasn't an option until anyopposition proceedings had
happened, and that can leavepeople in a position where they
were waiting several years toget decisions back, and now the
(12:21):
very ambitious timetable that'sbeen set in UPC proceedings is
12 months to a first instancetrial.
Currently that's what'shappening and it is a huge
difference for many, manyjurisdictions.
So you know, equally you canalso get revoked very quickly if
you're a patentee, but you getclarity in a much faster
(12:41):
timeframe under the UPC you getclarity in a much faster time
frame under the UPC.
Speaker 2 (12:47):
So previously, yeah, you had a European patent and it
was validated in six or sevenEuropean countries and you
wanted to actually stop somebodyinfringing it.
As we all know, you had to goand see them in all those
countries and then suddenly, atleast for the UPC countries and
let's not go into which onesthey are, it's mostly important
ones, except the UK Now you cantake a single action rather than
five or six, which is great,and that means, I guess, that
(13:08):
it's a very powerful tool interms of pan-European
injunctions.
Suddenly, I'm right in thinkingthat, well, okay, I do know,
but basically you can suddenlytake a single action and stop
infringement across a hugeswathe of countries.
That's right, isn't it?
Speaker 3 (13:24):
Yeah, that's correct.
I mean this is the big stick,this is the big incentive really
for patentees coming into thesystem.
And obviously the question thatwe were looking at for the
first year is how willing andwhat terms will injunctions be
granted?
And we found very found on.
Very early on the Munich localdivision granted a preliminary
(13:48):
injunction on a unitary patent,so it covered all all at the
time 17 countries.
That was actually overturned onappeal.
But I think we have justrecently, actually in the last
couple of weeks got the firstpreliminary injunction that has
been upheld by the UPC's Courtof Appeal and we've seen quite a
few PI decisions where a PI hasbeen granted.
(14:13):
We've also seen real scrutinyof the validity of the patent,
the way that the infringementhas been framed.
So what has come out in thefirst year is the seriousness
with which the UPC courts aretaking the assessment of
infringement and validity, eventhough it's not a full
(14:35):
proceeding on the merits from avalidity point of view, but it's
important.
And the other big trend thatwe've seen is kind of some
clarity on what the urgency is.
So how quickly do you have toget your action up and off to be
able to actually be granted apreliminary injunction by the
UPC.
Speaker 2 (14:53):
So breaking it down a bit again for the less familiar
with bits of law there.
So the preliminary injunctionsis basically you want to go in
very quickly, very early, andget something, get an injunction
quickly pending a full decision, as it were.
So we've seen those coming outalready.
So basically you've got yourproduct out there and you're
being ripped off and it'scausing you massive problems.
(15:14):
You can go in fast, which isgreat.
I think that's the kind of atool that people need the full
injunction.
Just to clarify you said that afull injunction had been issued
but it was overturned at appeal.
Was it overturned becauselegally they can't get full
injunctions, or was itoverturned because the case
didn't merit a full injunction,kind of thing?
Speaker 3 (15:35):
So the case I'm talking about is it was a
preliminary injunction case andit went up to the Court of
Appeal.
So it was granted at firstinstance, went up to the Court
of Appeal and the Court ofAppeal effectively disagreed
with the first instance coursein terms of they felt it was
more likely that the patentwasn't going to be held to be
valid on a kind of full merits.
So you know that was that.
But we have seen recently apreliminary injunction that has
(15:58):
been granted being upheld by theCourt of Appeal.
Speaker 2 (16:02):
Oh, so the courts are happy to give injunctions in
the right circumstances.
So it's a hugely powerful tooland, to the extent this goes out
in the States and we'rebuilding an American audience, I
think this is something that'sobviously of real interest, and
we'll get on to theinternational perspective in a
minute.
I just want to ask anothercouple of questions about the
UPC and bringing it back alittle bit.
First of all, as you mentioned,you were previously a UK
(16:23):
litigator.
Do you want to paint a pictureof some of the differences
between running litigation inthe UK versus running it at the
UPC?
It's civil versus common law ina sense, isn't it?
Speaker 3 (16:35):
Well, it's interesting you say that.
So the unique thing about theUPC setup is the rules are, in
fact, a very unique blend ofcivil and common law, and that
was obviously developed when theUK was was much more involved
and, although we haven't seenIreland ratify yet, they
obviously are a common lawjurisdiction that we hope will
(16:57):
come into the UPC.
But what we've seen in realityis that the it is currently all
civil law jurisdictions that areparticipating and we've not
seen much uptake or appetite touse the common law tools like
disclosure, expert evidence,cross-examination, for example,
(17:19):
and it has had a much more of acivil law flavour.
So that's the way it looks likeit's going now.
Obviously, that could stillchange because things are still
developing.
Speaker 2 (17:30):
That's interesting because we had that Kevin Mooney
on, didn't we?
We're asking some of thequestions because he was hugely
instrumental in setting this upin the first place and remained
instrumental long after Brexit,brexit, basically because of
just how centrally been taughtand how highly respected he may
still be, highly influential.
Actually, I've known him for alittle while.
(17:50):
One of the questions we havewas obviously we have wonderful
ambitions for this new hybridcourt, as you say, with uk style
and continental styleprinciples and maybe
unsurprisingly, given thatdiminished or, yeah, diminished
involvement, other than the factthat our EPAs can perform that,
it is getting a morecontinental vibe.
(18:12):
A little bugbear of mine is Ihave a little belief that the
European Patent Convention, bythe way, have the same thing.
If you look at the back end ofthe UK, see it's got a whole
bunch of very British stuff init that's never got used.
Do you think there's a chancethat the UK can influence a
little bit more andigators who,primarily through the Irish
route, are very active?
Speaker 3 (18:30):
actually in the UPC and again sort of picking up on
(18:53):
this role that a lot of UK firmshave always had, which is sort
of being the linchpin fornavigating for doing a
pan-European strategy.
The linchpin for navigating fordoing a pan-european strategy.
You know that, whether whetheractually on paper showing as upc
representative, but or or infact being very instrumental in
in how it works with the upclitigation, the uk is having a
(19:16):
huge influence.
I mean, obviously the thebiggest um driver of cases has
been in the German courts and sothere is currently a very
German flavour.
But we are seeing Paris and theHague also, you know, really
handing down influentialjudgments as well.
But we have seen pushback onthings like cross-examination,
(19:37):
for example, use of experts, notsort of discovery in the same
way or disclosure that we areused to, but it has been a very
rigorous procedure and very fast.
So those sort of the speedthing is making a big difference
, I think, to what thelitigation looks like.
Speaker 2 (20:01):
You mentioned that.
Obviously, things on the faceof it, things got simpler.
Suddenly you can get single um,so you get a single litigate, a
single forum and litigate thereand get your injunction.
For was it 400 million peopleand all that kind of thing?
The reality is it's not quitethat simple still, is it?
We still have nationalproceedings, we still have
(20:22):
oppositions and, of course, wehave the countries outside the
UPC but which are part of theEuropean power system, the UK
being a key one.
So how are you seeing peopleplaying this arbitrage, isn't it
?
There's a lot of options justat the moment.
How are you seeing people playall these different elements to
get the right strategy forEurope?
Speaker 3 (20:38):
yeah, you're absolutely right, it's another
layer of forum shopping.
I didn't say that.
Well, it's true, because youknow that's always the way you
approach, kind of what are wegoing to do?
Is you know where'scommercially important, where's
the activity happening?
All of those decisions are intoplay play.
(20:59):
And obviously we've still goteuropean bundles which can be
litigated in national courtsversus versus unitary patterns
which have to be litigated inthe upc.
Um, so it's added it'scurrently added a layer of
complexity because we are stillseeing people choosing, people
have opted out, so there's stillnational litigation but maybe a
(21:22):
divisionals in the UPC andthat's that's really for very
sophisticated players who've gotdeep pockets.
And the other thing that we haveseen in the first year with the
UPC is people trying to seewhere the boundaries are of the
rules.
And so you know we've seen hugeamount of procedural decisions,
(21:44):
appeals on procedural decisions, because people are testing the
boundaries.
You know what is appropriate,what is going to be the upc way
of doing things, and on thesubstantive law, you know what,
what does the upc law look like?
And people presenting, you knowsome people just well, it's
going to be like the german.
And then other people sayingyou know it's here's the, here's
the dutch way, here's thefrench way, here's the german
(22:06):
way.
And then you know, and mostpeople, I guess, would say well,
let's pick the way that suitsour case the best and the other.
The other area of tension aswell, particularly on the
validity side, is you knowwhat's the role of the epos
problem solution approach,because that's done differently
in different national courts aswell.
So all of that in the firstcouple of years, I think is
makes it more complex.
Hopefully it will driveharmonization and we will get a
(22:29):
UPC way of doing it and then itwill become more accessible to
those who you know don't havesuch deep pockets.
But that said, willem, what whatI found quite interesting is is
you know there's moremedium-sized, medium-sized
entities, entities who they'vegot an issue and they're really
frustrated and they want to beable to perhaps stop
(22:52):
infringement.
And the UK is one of the mostexpensive jurisdictions and they
don't want to pay the millionpound plus that you're with the
potential cost risk as well ifyou lose for one jurisdiction.
But when you're talking about17, now 18, versus the relative
cost and it can be done on arelatively sort of size the good
(23:17):
value it's not cheap but goodvalue for the amount of
jurisdiction that you'recovering suddenly those
companies that wouldn't havebeen interested before or might
have just perhaps done a Germanlitigation now can say well,
hang on, for the same price as aGerman litigation I can get an
injunction in 18 countries.
So there's differentconsiderations for the smaller
(23:41):
companies as well, which againwas the Uc was supposed to be
sme friendly.
Whether it is or not um remainsto be seen.
But.
But certainly there's interestin the mid, the mid-size um
firms where they wouldn't havenecessarily done so before I
thank you.
Speaker 2 (23:59):
That was actually.
Yeah, I've got lots ofquestions coming up your, your,
your points here.
But what?
The first one was that smething and the upc was built as
oh, it's the future for smes.
I don't think anybody, I don'tthink anybody ever believes that
.
It's really sad.
Um, uh, you mentioned deeppockets and we'll get to deep
pockets, but there'smiddle-sized pockets too, which
is something very important.
I suppose it was.
(24:20):
It was built in this way.
But I think what I'm hearing isis that, you know, maybe not
your kind of you know, yourlittle flower shop might
struggle, but somebody with adecent business, with a product
in Europe, they don't have tohave those super deep pockets to
use the UPC.
It is fit for purpose at thatlevel.
Speaker 3 (24:35):
Yeah, and there are discounts available in terms of
the court fees for SMEs as well.
So you know, if you can showthat you fall within the
definition, you do get quite asubstantial discount.
And there is also theavailability, you know, if you
issue and you settle at certainstages you can get some of the
kind of upfront court fees backtoo.
(24:55):
So there are some incentivesthere.
Right now it's, I think, quitedifficult because it is a bit
wild west whilst things arebeing tested and things settle
down.
But but you know when, whenthat, when that works out, I
think it will be attractive.
Um, if the business reason, thecommercial reasons, are there to
do it, then then it could be areally efficient way of.
(25:17):
It won't be as cost effectiveas an opposition, though I think
that's sort of still also avery important part of of and
from my point of view I alwaysthink of oppositions as another
jurisdiction, because it'sanother really important place.
It is a litigation, because it,you know, there's complete
knockout, um, so yeah, it's,it's balancing alongside that
(25:38):
kind of route.
Speaker 2 (25:38):
I always fond of the wild west analogy.
In the end, I mean, I guess thewild West is always policed by
a bunch of sheriffs.
I do feel that our judges atthe UPC they're good.
So you know, in the end I'msure they talk to each other,
and so that's good news.
Speaker 1 (25:56):
Just to prove that I'm here and I'm listening,
Willem.
When we first launched ourawareness raising programme
around UPC and the role that UKlitigators would have in it,
President Matt Dixon did, ofcourse, refer to us as guns for
hire.
Speaker 2 (26:13):
Honestly, the analogies go on and on.
Speaker 1 (26:17):
I'll be quiet again.
Speaker 3 (26:18):
Matt's right, because one of the big things I think
kind of on a practical level isbecause of the timescales and
how much work is involved inthese litigations, the size of
your team, the depth of yourparticularly on the technical
expertise, how quickly you haveto turn things around if you're
a defendant, for example, ofUK-based European patent
(26:41):
attorneys, particularly with theEnglish language really coming
to the fore.
The technical expertise, thelanguage skills, the knowledge
of the law is really useful.
So that is something thatdefinitely the UK can sell and
you know, and we're used todoing that as a sort of you know
, the US comes into the UK quiteoften.
(27:01):
So you know, and currentlyworking with local co-counsel as
well, whilst things settle down, you have an uncanny ability to
predict my next question, whichwas the international elements.
Speaker 2 (27:13):
So when I heard some commentary from the US that,
given that some US parents willseem to feel that the US is a
bit anti-patent at the momentyou can't get injunctions,
there's all these kind ofchallenges available at the
USPTO and everything that theUPC is being looked at as a
potential alternative startingpoint for kind of a global
(27:35):
strategy, is that something youthink is?
Is that, is that a commonlyheld thought?
Speaker 3 (27:39):
yeah, no, I think it is.
It is very much because of um,the jurisdiction, territorial,
the territorial area, the, thevalue of the market that's being
covered.
It suddenly looks, not quite atthe level of the US, but
similar to the US, and whatwe're seeing is that validity is
(28:00):
being very carefullyscrutinized.
So you do have to have a goodcase, but then, equally, there
is a willingness to grantinjunctions, which in the US,
preliminary injunctions aretricky, and and also, when you
look at the cost of litigationin the UPC versus the cost of
(28:21):
litigation in the US, there is ayou know it's, it's a lot, a
lot less and it's and it'scurrently a lot, a lot quicker.
You know the.
If you go into district courtlitigation or even ITC
litigation, itc is minimum 18months.
District court you're lookingat years and here we're talking
(28:42):
about a really high qualitydecision on infringement
validity within 13, 13 months,14 months thank you.
Speaker 2 (28:53):
That's kind of it's good to hear that corroborated
because it's an excitingdevelopment, but I think it does
bring I've also heard somepotential risks in terms of the
the strength of the forum andthe attractiveness of it, and
they're kind of, you know, alevel playing ground, let's say,
on validity.
There were fears at the outsetthat it would therefore become a
(29:14):
bit of an mpe playground.
That would be very attractiveto businesses who litigate for
their business to come to europe, because it's such a powerful
sanction that people are likelymore likely to settle instead of
giving them money and back up,which is, we know, a huge
problem in the states.
Is there a risk?
Well, are we seeing that riskmaterializing, that we're going
to see more litigation as sport,if you will?
Speaker 3 (29:38):
one.
That was a fear.
Definitely.
That was in the minds of the umcommittee who were drawing up
the rules, and it's one of thereasons why we have cost
shifting um for a kind of loserpays principle not not on the
same level as as the uk, but ona on a sliding scale.
There's, you know, if you losethen you will have to pay some
(29:58):
fees and part of that was todeter just just kind of
non-practicing entities using itto um using as a big stick to
scare people.
We are seeing, we are, we haveseen some activity, activity
from the non-practicing entities.
Not that much, you know, that'snot really been the main part
(30:21):
of it.
We have seen some settlementsin that area.
I don't.
Yeah, it's hard to know.
It's hard to know.
What we haven't really seen, orhaven't seen visibly, is the
role of litigation funders,which obviously is one of the
big, big sort of drivers fornon-profit entities in the US.
We'll see.
(30:41):
I think the cost, the costsanctions will put people off to
a degree, unless they thinkthey really do have a good case.
Speaker 2 (30:49):
Which is a good thing , because I'm not surprisingly
pro-IP.
But it does worry me thatthere's some areas where it can
be gained, and I think notnecessarily on policy.
So I'm pleased that we've gotsome provisions in place that
block it.
I've got one more, lee, andyou're back in the game.
My friend and I was to askRachel, so we talked about the.
Upc is a new forum.
(31:09):
It's got new law.
It's a mix of lots of nationallaws.
There's some British influenceand common law influence.
You mentioned theproblem-solution approach, the
EPO's favour and everything.
What's your prediction forwhere the law is going to set up
?
Is it going to be a completelyfresh look at IP law or is it
going to be very German, forexample, where is it going to
sit?
Speaker 3 (31:34):
example, where is it going to sit?
Well, I, what I my hope, my hope, is that um and I have heard,
uh, on various various um sortof panel discussions where the
judges have been talking aboutthis particular issue that they
take the best of everythingbecause this is the opportunity
to do it.
You know, even even you know, agerman judge, for example, will
have some areas of the lawwhere they think actually that's
we've not, as a national court,gone the right way on that, for
(31:56):
whatever reason, and or, youknow, we've seen the Dutch court
do this and actually we likethat.
So my hope is that you know itwill be the best practices and I
think certainly the judges youmentioned earlier, the judges
very much are talking to eachother, they're learning from
each other.
I mentioned we did the firstsaisie in front of the Paris
(32:20):
Circle Division and we know thatthat was being watched by many,
many of the other judges, justto see what that looked like,
because, of course, the Parisjudges have got the most
experience in that area at thenational level.
Yeah, so I think I, my hope isthat it will, it will take the
best of things, um, you know,including epo and and across all
(32:43):
of the courts that are involvedlee you're gonna want me to
come in now, but aren't you Comeon, we've missed you, you've
almost
Speaker 1 (32:52):
exhausted it, gwilym?
I wouldn't know.
So the sort of things I'minterested in aren't really the
practical stuff though, rachel.
So it's more your feeling forhow things are going, and so I
was.
Well, whilst we've been talking, I've been looking back at when
we did our sort of first pieceof awareness raising around this
.
We introduced the concept ofthere being sort of seven
(33:13):
reasons why uk patent attorneyswill be at the forefront of the
upc.
So first question are uk patentattorneys at the forefront of
the upc?
Speaker 3 (33:22):
I.
Well, I I have to say I to befair to the germans the germans
have done very well thus far, so, um, I think it would be unfair
to say that they're not reallyreally driving forward just
because of the way where thecases have landed.
Uk patent attorneys and UK firmshave very much been involved in
(33:43):
the development of the UPC inthe first year.
I think we've had a very stronginfluence on developments so
far in cases and you know we'vealways worked you know the UK
profession has always worked ininternational teams, whether
that's within firms or, you know, with co-counsel in the
(34:04):
different national courts, and Ithink that's what we've seen
and it's been a very it has beena really exciting time and
almost questioning, you knowwhat you know from before and
actually, okay, well, do we haveto do it like this?
Is there another way of doingit?
Did the Dutch do this betterthan we do?
Or, you know, actually wereally want to push how we see
this.
(34:24):
That has really been very muchpart of the conversations that
we've been having on cases thatwe've been having on cases.
Speaker 1 (34:31):
So the other thing that crossed my mind whilst we
were talking is the.
So we hear in the conversationsthat we have that maybe the
courts aren't so enthusiasticabout EPAs as litigators.
Is that something you've pickedup on or is that just noises
coming out of the courts?
Speaker 3 (34:50):
I think I mean.
So.
If you look at the way thecourt is set up, it's a very
kind of German or Dutch model,which has always been a
litigator with a patent attorneyand, the way you know, in the
past, when we've sort of gone tohearings in the German courts
or the Dutch courts, the courtwill.
It's very short hearings.
So the judges are like okay,we've read your voluminous
(35:14):
pleadings, we are interested inxyz and and, as has always been
the case in terms of kind oflitigation, when you, you know,
before the dutch court, forexample, if one of the points is
added matter, then it is goingto be your epa who is doing that
discussion and and you know, ifthere's a particular technical
point.
(35:34):
So I I I'm not sure that's thecase in terms of as litigators.
I think it is.
It is a, it's a team sport,litigation is a team sport and
what we, what has been reallynecessary across the litigation
so far, is big teams, and Ithink epas are a very crucial
part of that, including at theoral hearings.
Speaker 1 (35:55):
Yeah, I think I'm done grill them.
I think those are the only sortof things that crossed my mind
while, um, whilst we weretalking, I have one more
question then of course you do.
Of course you do.
This isn't your closer, is it?
Speaker 2 (36:05):
no, no, no, no, no, no, no, no.
Um what science degree uh cellbiotechnology genetics.
Genetics and microbiology yes.
Squishy things.
That's a clever one.
Squishy things.
I get that.
I was obviously hoping you'dsay physicist, but I just always
say that yeah you always saythat.
Speaker 3 (36:22):
No, I went for the soft sciences, Gwilym.
Speaker 2 (36:25):
The squishy sciences yeah.
Speaker 1 (36:28):
Well, gwilym, we're back on 40 minutes because you
know, one of my jobs is to sortof keep an eye on the time.
So we're back on 40 minuteswhich is usually a good length
of podcast for us.
Um so, rachel, we normallyfinish with some kind of really
highbrow intellectual closer.
No, no, we don't we normallyfinish with some kind of
extraordinarily trivial closerand not.
But normally it's my job to dothat.
But I got a message reallyearly on in the chat from Gwilym
(36:51):
saying oh, I've got a closer,don't bother thinking about one.
So the way this works is he'sgoing to ask me, which gives you
time to think about your answer, you're going to answer, and
then we throw it back at Gwilymas if he didn't know it was
coming back at him.
I've given the game away toGwilym.
Speaker 2 (37:14):
Maybe about?
No, no, don't.
By the way, did you have youcome across the word kayfabe,
the word what kayfabe spell?
I think I don't know.
Actually, I think it'sk-a-y-f-a-b-e, kayfabe.
No, so it's a really cool thingthat apparently comes from
fairgrounds originally and it'sa pretense that everybody
actively buys into, like thetooth fairy and that kind of
thing, oh, okay, and all aspectsof wrestling.
So this is effectively akayfabe, it's a kayfabe Okay.
(37:36):
Great phrase.
Speaker 1 (37:37):
I know exactly what they mean.
The moment you say it, you knowwhat it means.
You know I'm Googling that themoment we finish.
Speaker 2 (37:42):
I could be wrong actually this could be the
kayfabe I made it up Right, somy closer First it goes to Lee.
I haven't actually announcedmyself in gold, which I thought
was true.
So at the very beginning wetalked about Newfoundland and we
talked about Canada and wetalked about dual nationality.
So, lee, I don't believe youhave dual nationality.
Speaker 1 (38:03):
I don't have no.
Speaker 2 (38:05):
If you did, what would your other one?
That's quite good, isn't it?
Speaker 1 (38:11):
We've not done this one.
That's quite good, isn't it?
We've not done this one.
That's such a cool question.
If we did, what would my otherdual nationality be?
God blimey.
I am sort of semi-stumped.
I'm sort of thinking German,because I've always quite liked
Germany and despite my sort ofreally bad attempts to learn the
language, that would perhapshinder me.
(38:32):
So maybe I'd have to gosomewhere that was English
speaking.
I love Canada, but that wouldbe like I'm sort of creeping too
much with Rachel having dualnationality, wouldn't it?
So I probably can't say Canada,new Zealand, I'll go New
Zealand, yeah, yeah, yeah, I'llgo New Zealand.
Kiwi Davis, yeah, good good afeel to it.
Speaker 2 (38:54):
Rachel, if you could have another I assume you've
only got dual right if you had athird, what would your third
nationality be?
Speaker 3 (39:00):
well, it would be Irish.
Actually, I'm in the veryannoying situation of going back
sort of a generation and a halfand pretty much being entirely
Irish family, but yet not quitequalifying for the Irish
passport post-Brexit.
So if I could reclaim my Irishroots I would love to do that.
There we go.
Speaker 2 (39:21):
Excellent.
Speaker 1 (39:24):
Oh, there's somebody else in the room.
Yeah, go on, then.
I forgot you were there.
Oh, yes, me Right, sorry, yes,so back at you, back at you.
Speaker 2 (39:32):
Well, I mean, as you know, really I never stopped
talking about my fervent Welshnationalism and I still regret
the union.
Speaker 1 (39:42):
But hang on, if you were a fervent Welsh nationalist
, you would say there was nevera union.
Of course.
Speaker 2 (39:47):
Exactly exactly.
Speaker 1 (39:48):
It was an invasion and an occupation.
Speaker 2 (39:50):
So I'm going to declare my existing dual
nationality as British and Welsh.
Speaker 1 (39:55):
There you go yeah, I can't do that, because if I
declare my Welshness Charlotte,my exec assistant always rips
into me hugely saying you'rejust a fake Welshman Davis, me
too, me too that's exactly whatI am yeah, so I steered away
from that one because it'll getme into trouble if it ever gets
heard in the office.
Not anyone listens to thepodcast in the office group.
(40:17):
Oh, rachel, thank you so muchfor coming on and sharing your
experiences at the UPC, so thishas been recorded just shortly
before SEPA Congress.
So you're going to do thisagain for us next week at
Congress.
Speaker 3 (40:27):
Yes, with a really exciting panel.
Speaker 1 (40:30):
Yeah, and this will go out after Congress, so we
would have had the benefit ofyour experiences there as well.
Really looking forward to that,gwilym.
I'll see you on the next one,mate, but I probably need to say
to you that, as this is thefirst one in the series, we've
got a new jingle.
How exciting is that?
It's a jingle that's reallypersonal to you, isn't it?
Speaker 2 (40:51):
Absolutely, it's double exciting.
Uh, it's quite cool.
The jingle, um, I think Iabsolutely love it.
We have we have a cut from itat the beginning and then, uh,
listening in, at the end you'llhear the whole thing.
But yeah, well, my son wrote it.
He's a very talented musicianand he's very good at putting
things together and it's superprofessional and absolutely
everything on it is him playinginstruments with some fancy
(41:14):
music mixing program, except forone bit which is me singing Lee
and Gwilym R.
So there you go, I'm part of,I'm part of the experience,
which I'm proud of.
Speaker 1 (41:24):
I really love it.
I love the bit.
I love the bit that we'vesnicked out for the, for the
intro, and it's great that we'regoing to hear the whole thing
at the end and um, and we'regoing to, we're going to do a
podcast on music when we'regoing to talk about the jingle
as well, so some piece of pointin the series.
Hopefully we're going to getlittle grill.
Speaker 2 (41:37):
I'm on he's not that little.
Speaker 1 (41:38):
He's a lot bigger than big william yeah, they do
help grow, you, don't you?
Oh, yeah, I found that withmine.
Speaker 2 (41:46):
I should name check him it's billy billy roberts.
Speaker 1 (41:49):
Well done, bill, yeah yeah, yeah, so, yeah, so, be
good, be good to get him on whenwe're talking about music.
So, yeah, thanks again, racheland um, I'll catch you on the
next one, but before I go, whatshould people do if they've
enjoyed this podcast?
Can you remember?
Speaker 2 (42:03):
go for a swim, yeah, that's the second thing.
Speaker 1 (42:06):
They should do this.
All right, sorry, what was?
Speaker 2 (42:08):
it.
What was it?
I don't you know it.
Speaker 1 (42:10):
Yeah, go for it, leave us a review On the
podcasting platform of theirchoice, because you know that's
how people find new podcasts isthey look at reviews and
hopefully we'll grow theaudience that way.
Speaker 2 (42:22):
Actually, if you just leave us a review, whatever
you're reviewing anywhere, canyou also add on?
Although it wasn't very good, Irecommend you listen to Two IPs
in a Pod.
Speaker 1 (42:30):
Yeah, yeah, on other people's podcast reviews.
Yeah, leave it on otherpeople's.
So I'm going to go on the restis history immediately after
this and leave a review aboutTwo IPs in a Pod.
Speaker 2 (42:43):
Let's go viral.
That's how you do it.
Let's work it.
Thanks both.
Speaker 3 (42:47):
Thank you.
Bye guitar solo, outro Music.
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