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FD: "New European patent law impetus to merger of top-tier lawyers"

1 June 2015
Mon, 06/01/2015 (All day)

The article below has been published in Het Financieele Dagblad of June 1, 2015.

The renowned law firm Hoyng Monegier from Amsterdam will merge with a German industry partner. It concerns Reimann Osterrieth Köhler Haft (ROKH), which is specialized in intellectual property law and patent disputes, like Hoyng Monegier.

With this merger, the firms are ahead of a big change in the European patent landscape. Almost all EU member states have subscribed to the establishment of a European court that has cross-border jurisdiction in patent infringement disputes.

This is a niche in the legal market, albeit an important one, given the increasing importance of technology and technological breakthroughs in society. Presently, companies must turn to courts in individual member states. This confronts them with a patchwork of legislation. The so-called Unified Patent Court (UPC) will bring an end to this when it opens for business in 2017, as is expected.

In an interview with FD, managing partner Willem Hoyng calls the leap his firm is making ‘a strategic choice’. ‘Half of all European patent disputes take place in Germany. It is therefore important to also be represented there.’

Hoyng Monegier, with offices in the Netherlands, Belgium, France and Spain, was already cooperating with ROKH in cross-border patent matters. The Dutch-German merger will bring together 150 employees, 36 of whom are partners. The annual turnover of the new pan-European firm will be approximately €45 million, according to Hoyng.

‘The Netherlands should have a leading position in patent law’

Willem Hoyng criticizes lack of political will to play a central role in European patent law.

There is no shortage of large clients at Hoyng Monegier. In the untidy office of lawyer Willem Hoyng on the 31st floor of the Rembrandt Tower in Amsterdam a can of Red Bull and a pack of Ariël laundry detergent are almost carelessly arranged.

Hoyng (69) is considered a sage in the legal profession when it comes to intellectual property law. Not long ago, he acted for Procter & Gamble in a contentious matter: would the American concern with its Ariël product infringe its rival Unilever's patents for pods with liquid detergent. For Red Bull, his firm protected the trademark of the Austrian manufacturer of sweet energy drinks in the Benelux.

While large international companies know how to find Hoyng Monegier, Hoyng feels the need to make a further step with his firm. Today, he announces a merger with the German firm Reimann Osterrieth Köhler Haft (ROKH). The new firm will bear the name Hoyng ROKH Monegier.

The merger is closely related to a landmark change in the European legal system for the resolution of international patent disputes. For decades, there has been talk in Europe about unitary patent law. Since 2013, there is a treaty that provides for the establishment of a Unified Patent Court (UPC). ‘This will allow dealing with civil cases on a federal level for the first time in Europe’, explains Hoyng. ‘Actually, this is much like how things go in the United States.’

In practice, in one and a half year’s time, parties will no longer need to litigate in multiple member states when they believe their patents are infringed. A decision of a central court in Paris, Munich and London, or a local division in e.g. The Hague, will be valid in 25 EU member states that will probably join the UPC.

Only Spain, Poland and Croatia have indicated that they will not participate. Because of the European approach, litigation will be less costly and time-consuming.

According to Hoyng, another breakthrough is that English appears to be accepted as the most important language in the new legal system. Even France, an avid protector of its own language, has accepted that English may be used as a procedural language apart from French.

That language no longer needs to be a barrier also becomes clear from the introduction of a single European patent, also known as a Unitary Patent. At present, a European patent is still a bundle of patents that was applied for and translated in every EU member state. In the new structure, a patent application in English, German or French will suffice, which is by the way the reason that Italy opposed the initiative for a long time and Spain is still not prepared to join the new system.

It is unclear when the UPC will hear its first cases. Various member states, including The Netherlands, still have to ratify the treaty. In addition, judges must be selected that will hear cases in the internationally composed panels of the UPC. Hoyng expects that it will not be before 2017. ‘And it may go wrong altogether if the UK leaves the EU.’

Hoyng, who is closely involved with the establishment of the UPC, believes his firm should adapt. The importance of a decision increases, because it has a much larger territorial scope. Law firms will therefore have to offer larger teams for clients. Those clients in fact demand this.
At the same time, there will be more room for clever maneuvers. Companies may choose to keep old patents outside of the new system, especially when they think a weak patent may be wiped off the table with a single blow. That also requires specialist knowledge. That is what Hoyng has been aiming for since 2003, when he left De Brauw Blackstone Westbroek, a legal juggernaut of which intellectual property was only a small part, with a number of other lawyers.

‘We are not merging with ROKH to grow’, says Hoyng. ‘We remain a boutique. But we want to be able to litigate well everywhere. Therefore, it is good to join forces with a firm that knows the local customs.’

While Hoyng Monegier seems to outgrow The Netherlands, Hoyng can still be bothered about the chances the government is wasting to make The Netherlands an important place for the resolution of patent disputes. According to him, our country has a reputation to live up to, ‘but it seems that political will is lacking right now’.

The Netherlands still has not ratified the establishment treaty of the UPC. It is also not very motivated to push forward The Hague, its own international legal capital, as a local division alongside the central courts in Munich, Paris and London.
‘That is very disappointing. The Netherlands should be leading with a European patent court, especially now we are always boasting about innovation. Germany is already busy promoting its court. We are in danger of losing the battle.’

Hoyng says he is not preaching to his own parish. ‘You almost see them thinking at the Ministry of Economic Affairs: that fellow Hoyng is a lawyer, he wants to make money. But if the government does not take a pro-active position, it runs the risk of losing a lot of expertise.’

Joining of forces

The merger between lawyer's boutiques Hoyng Monegier and Reimann Osterrieth Köhler Haft (ROKH) will unite 150 employees, of whom 36 are partners. The annual turnover will be about €45 million, says managing partner Willem Hoyng. Two thirds of the partners come from the Dutch part, but Hoyng emphasizes this is not a takeover. No money is paid and Hoyng will not control the German part as a CEO. The managing partner of ROKH will soon discuss ongoing matters every Tuesday in a teleconference with the offices in Amsterdam, Madrid, Paris and Brussels.
Hoyng Monegier was already cooperating with ROKH. Three years ago, the partners of ROKH were still a bit hesitant about a merger, but that changed as a result of the upcoming changes in European procedural law for patent disputes.

This document is a translation of an article written by Jeroen Segenhout, journalist. It was first published in Het Financieele Dagblad of June 1, 2015. The copyrights relating to this article are held by Het Financieele Dagblad.

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