Dr. Antje Brambrink participated in a Q&A about patent litigation and patent disputes.
Dr. Brambrink, you joined Finnegan in July 2022 in the Patent Litigation department. What was your path into patent law like? And what did you specialize in?
That I would take the path into patent law was not foreseeable at the beginning of my law studies. I had previously worked as a dentist for several years and wanted to combine my knowledge from the fields of medicine, science and law. Therefore, medical malpractice law was the first obvious choice for me, and I aligned my stations in the legal clerkship accordingly. After that, everything fell into place by itself.
After my legal clerkship, I wanted to learn the tools of the trade in a large law firm. During my job interview at a major international law firm, the senior partner suggested I start working in patent law because of my dual qualification. The combination of science and law sounded very exciting to me and I took the plunge: although I had no prior knowledge of patent law, I started as an associate in patent law. In order to further expand my expertise in life sciences patent litigation, I moved to a team specializing in this area at another major law firm in early 2020, before joining Finnegan in July 2022. Here, my focus is now also on health care and life sciences patent litigation.
Finnegan launched in January 2022 with a team of seven in Munich. What convinced you to join Finnegan as a lateral? What makes Munich a crucial location for patent litigation?
Finnegan is an internationally renowned name in patent law. We mainly work on high-profile major cases, i.e. economically relevant cases for well-known, globally active companies. Since we often work in cross-location teams, it was particularly important for me that the teamwork functioned well. Since I not only found highly competent colleagues at Finnegan, but also very likeable ones, everything was a perfect fit.
I was also attracted by the opportunity to help establish a new location in a market that is new to the firm and has great potential for development. The fact that Finnegan is based in Munich made the decision easier. Munich offers an incredible amount and is an important location in patent law. Not only are many patent infringement cases brought before the civil courts here, but the Federal Patent Court, the German Patent and Trademark Office, and the European Patent Office are also located here. In the course of the establishment of the Unified Patent Court (UPC), Munich will gain even more importance as a location.
What particularly distinguishes the work in patent litigation?
One special feature is the combination of law and technology, which makes the work very varied. Patent litigation also often plays out on a global level, so there are many points of contact with international law. As litigators in the classical sense, we must have a very good command of procedural law and be "at home" in patent law. On the other hand, we deal intensively with technical and scientific issues. In doing so, we exchange ideas as a team with patent attorneys who contribute their particular technical or scientific expertise.
What particularly appeals to you personally about patent litigation, and what issues are you currently dealing with?
I find the combination of law and natural science particularly appealing, and that in patent law no two cases are the same. Litigation for us is also first of all about obtaining a title and then enforcing it. The main goal is always to help the client achieve success in the best possible way.
Often it is about well-known products, where it is our task to find a way to protect the market position of the company as good and as long as possible. In doing so, strategic aspects also come into play, which require a full view also of parallel proceedings in other jurisdictions. As a result, it always remains very exciting and varied.
You are a lawyer. What is the cooperation with the patent attorneys like, how are the tasks distributed in the teams?
We usually work in mixed teams of attorneys-at-law and patent attorneys in the proceedings. For me as a lawyer, the focus is on the legal and procedural aspects. For example, the question is whether the challenged products infringe the patent on which the litigation is based. In contrast, patent attorneys focus on the technical and scientific details and the question of whether the patent in dispute is legally valid.
How do you prepare for court proceedings?
Court proceedings are clearly structured: The court sets us certain deadlines within which we have to submit our pleadings. So we know how much preparation time we have and use it to draft the pleadings and coordinate them with the clients. The goal is to explain the sometimes complex technology to the court as simply as possible. The trick is to be as convincing as possible so that the judges decide in favor of our clients.
What should young lawyers who want to work as litigators bring to the field?
In addition to an interest in legal topics, it is important to be open-minded about technical issues. You should enjoy taking a really close look at a case that seems complicated at first glance in order to develop a good understanding and convincing arguments. After all, the goal is to deliver a first-class work product to the client and help them achieve the success they desire.
In addition to being a licensed attorney, you are also a licensed dentist and have extensive knowledge of the healthcare sector. Is prior scientific or technical knowledge a necessary prerequisite for working in patent law, especially in litigation?
Clear answer: No, you do not need prior technical knowledge or technical training to start as a patent litigator. What is important is that you are burning to become a good litigator and are well versed in litigation law. The technical or scientific issues open up with the assistance of patent attorneys. The longer you are a lawyer, the deeper you automatically get into the technology and build up a better understanding. It is certainly helpful if you have your own technical or scientific background, but this is not mandatory.
To what extent are you confronted with European and international legal standards and cross-border issues in your day-to-day work?
Very often! Patent disputes are mostly global legal disputes that are conducted in parallel in several European countries, the USA and Asia. Since we have a two-tier patent law system in Germany, where infringement proceedings are often decided more quickly by the civil courts than nullity proceedings before the Federal Patent Court and the Federal Supreme Court, patent owners can sometimes obtain an injunction quite quickly.
This makes Germany very attractive for patent litigation in an international comparison. It is expected that the UPC will start its activities for the first time on April 1, 2023. We will then also be able to bring cases from other EU member states to court, so we are effectively expanding our sphere of influence. We also have an excellent international exchange at Finnegan, which the firm also strongly promotes with international meetings and conferences.
How are the teams set up depending on the project, and do you also bring in external consultants for highly complicated technical or scientific issues?
When putting together the teams, we primarily look at who has the best expertise in the aspects relevant to the proceedings and the technology involved. For technical issues, we often first talk to the technicians and department heads on the client side, as they are most familiar with the products and manufacturing processes in dispute. If necessary, we also call in external experts as party evaluators. These are often university professors who are absolute experts in their field. A special feature is the combination of law and technology, which makes the work very varied. Patent litigation also often plays out on a global level, so there are many points of contact with international law.
The work involved in patent litigation is demanding and certainly requires a high level of commitment. How can a good "work-life balance" be ensured here?
I think that achieving a healthy work-life balance is an issue in all law firms that work internationally and with high standards. In patent litigation, we have the advantage that we know the court deadlines and dates at an early stage and can adapt to them in the long term. This makes our work very easy to plan. Of course, we also have our share of turbulence, for example when it comes to interim legal protection. But overtime on a large scale is not the rule.
Do the major changes in European patent law also have a negative impact, if any, on your work as a litigator and your clients?
Like any systemic change, the UPC presents both opportunities and challenges. For example, we do not yet have UPC case law and the bench will be international. Therefore, it will be very exciting to follow which ruling practice will become established and to what extent clients, in particular, will make use of the new system. This is exactly what contributes to the fact that the profession as a patent litigator will continue to be very exciting and varied in the future.
You have already been working successfully as a litigator in patent law for many years. Is there a case or project that has particularly stuck in your memory?
There have been many exciting cases. I particularly remember those cases in which the cooperation with the clients and the team was highly trusting, appreciative and appreciative. I also have fond memories of those cases in which we were able to contribute to the further development of the law and, as it were, wrote a piece of legal history.
In your opinion, is there a "recipe for success" for being convincing in court as well as in consultations?
Good preparation is extremely important in order to be able to respond spontaneously to the unexpected and to react as confidently as possible to the unforeseeable. A strategic mindset is advantageous in order to be well prepared for possible arguments of the opponent. It is also invaluable if you can quickly establish a good rapport with people and put yourself in their shoes. It is also very helpful if you are eloquent and know how to communicate convincingly.
Your conclusion?
If I could choose again, I would choose patent law again. The work in patent litigation is extremely versatile and varied. The mix of law and technology means that no two cases are the same, and the upcoming opening of the UPC is a guarantee for many exciting questions and developments in the coming years. Therefore, for me, I draw the conclusion of an extremely successful career choice
