Second opinion in European patent litigation

Patent litigation involves significant sums and choices that are hard to reverse: to act or to wait, to sue before the Paris Judicial Court or before the Unified Patent Court, to file an opposition before the EPO, to accept or refuse a settlement. These decisions often rest on the analysis of a single firm, engaged in the matter for a long time. A second opinion tests that analysis against an outside view, with neither the history of the matter nor an interest in defending the positions already taken. It is particularly useful before a decisive hearing, before an appeal, before an opt-out decision or when assessing a settlement offer.

• A scoping questionnaire and a closed list of the documents required, to limit time spent and scope.
• A chronology of the dispute and an analysis matrix covering validity, infringement, procedure, evidence and injunctive measures.
• Scenarios with a qualitative assessment of their prospects, costs, timelines and tipping points.
• A short note or a strategic opinion, written to be read by management, followed by a debriefing meeting.
• A clear recommendation and a thirty-day action list.

First, a thirty-minute scoping call checks the absence of conflicts of interest, defines the question asked and agrees the format. Next, a written proposal with three levels of depth is sent within forty-eight hours, with a time cap. Finally, the analysis is carried out from the documents provided, without contact with the opposing party or the court, and presented orally before the document is delivered. Lead counsel can be involved in the debriefing if the client wishes. Confidentiality is guaranteed by legal professional privilege.

Legal departments and IP managers of industrial, pharmaceutical or technology companies, foreign firms needing a French or European reading of a case, patent attorneys who want a litigation view before advising an action, funds and acquirers facing ongoing litigation in a target.

A second opinion ends with a recommendation. Depending on the case, it may lead to a litigation readiness review, a litigation coordination engagement, a negotiation or a local opinion for a foreign firm. It may also confirm the current strategy, which is in itself a useful outcome for management.