The UPC at 18 months

The Unified Patent Court (UPC) is undoubtedly a success as a forum for the enforcement and revocation of European patents (EPs). The UPC Registry's statistics, for the first 18 months of the UPC being available to hear cases, show that the new court has gathered a significant amount of business. There were 239 infringement actions and 55 standalone revocation actions filed in that time. This is also notable as we are still within the transitional period (which has over five years at least left to run) where, in most situations, there is still a choice to enforce or invalidate EPs via national courts instead of the UPC.  Applications to the UPC are increasing at a significant rate in every 6 month period as the new system gains the recognition and confidence of stakeholders.

Analysis

Our latest briefing in our UPC series, The UPC at 18 months (available by application here), analyses the UPC's decisions and orders published since our June 2024 briefing The landscape of the UPC one year on (written on the first anniversary of the UPC) but refers back to earlier cases where relevant, and covers UPC decisions and orders published on or before 21 January 2025. 

We now have 18 months of UPC procedure, orders, preliminary measures (including 30 Court of First Instance (CFI) preliminary injunction (PI) decisions) to consider, and, most significantly, there have now been 30 decisions on the merits (as published by the UPC to 21 January 2025), all of the latter given in the last 6 or 7 months since our last briefing.

One thing is certain, the UPC continues to prioritise speed in its approach to procedural issues – stays are hard to come by and even an EPO hearing to be held the day after the date the UPC hearing had been set for was not sufficient for the court to allow a stay. There were even decisions and orders handed down on both 24 and 26 December 2024.  However, most decisions on the merits are currently being given within 13-16 months, which is slightly longer than the 12 months prescribed in the UPC Agreement (UPCA).

There have also been a significant number of UPC Court of Appeal (CoA) decisions on procedural and legal points, beginning an effective form of precedence at the UPC, which does not apply precedence in general between the various courts of first instance.

This wider range of published decisions now allows potential UPC litigants to gather a clearer understanding of how the court operates, its approach to particular procedural and legal issues and to better anticipate outcomes. Whether this will in time lead to a greater number of cases being lodged at the UPC, or fewer (more appreciation of likely outcomes driving the settlement of disputes) only experience will tell – but for now we can see that there has been over a 120% increase in the number of filings in 6 months the end of December 2024 (over the preceding 6 months), which can only be a sign of increasing confidence in the new system.

Is the UPC patentee friendly?

Analysis of the 30-odd PI applications made at the UPC so far, shows a fairly even balance of those awarded and those refused, with the CFI's decision being approved by the CoA in a slight majority of the small number of PI appeals.  Decisions on the merits however paint a relatively positive view for patentees. There the majority of patents have been found valid (the successful use of auxiliary amendments helping to support this) and infringement has almost always been found where the patent is valid and infringement is asserted.

What actions are being brought and where?

The statistics for the end of December 2024, which represent cumulative numbers since the start of the UPC in June 2023, show that the Munich Local Division is very much ahead in terms of filings for infringement actions, with 81 listed as a cumulative total to the end of December 2024. The four German local divisions are receiving the majority of the infringement actions: 184 in cumulative total, compared the next nearest of 15 for the Paris LD and CD combined, followed by the Milan LD and CD at 14.

Expansion of the UPC

Nevertheless, since the UPC commenced in June 2023, only one further UPCA signatory state has fully ratified the Agreement. This was Romania, which joined the UPC system on 1 September 2024, bringing the total UPC Contracting Member States (CMS) to 18. UPs granted after this date cover Romania as well as the other 17 states already in the UPC prior to this. Those UPs already granted before 1 September 2024 retain the 17 state coverage but do not expand their reach to Romania.

Similarly, the addition of Romania to the CMS list does not mean that the decisions in the UPC cases commenced before Romania joined and currently in progress will automatically take effect in Romania. This would require a change in pleadings to incorporate the newly joined state. In one on-going case (Edwards v Meril, CFI 501/2023, Munich LD, 20 December 2024) the parties have agreed to amend the pleadings to add Romania; this was allowed by the court (by consent).

Whilst Spain, Poland and Croatia still appear to be holding out and do not intend to join the UPC, perhaps 2025 will be the year that more of the remaining signatory states (Cyprus, Czech Republic, Greece, Hungary, Ireland and Slovakia) finally fully ratify the UPCA? Ireland still requires a referendum to confirm its power to ratify; the one planned in 2024 was postponed with no new date yet assigned to it.

A rise in unitary patent requests

In a trend that appears to confirm a growing confidence in the UPC system, the proportion of EPs being granted with unitary effect (ie as unitary patents (UPs) which can only be enforced in the UPC, not in national courts) has reached more than one in four granted EPs. Statistics from the European Patent Office (EPO) show that 25.5% of all EPs granted in 2024 were granted as unitary patents. This percentage increases to 37.1% if you are looking at EU based applicants only (and compares to 17.5% globally and 26.3% EU uptake in the last 6 months of 2023, the first period when the UP option was available).

Read our briefing to discover the UPC's approach to Sources of law; Claim interpretation; the Doctrine of equivalence; the definition of "the person skilled in the art" and the common general knowledge; Novelty and inventive step; Added matter; Amendment of the patent by auxiliary request; Insufficiency and "obvious errors" in the patent; Preliminary injunctions; Jurisdiction; Bifurcation & joinder; Stays and suspensive effect; Security; and Transparency requests.

We have also published a practice notes in Practical Law on the unitary patent and an article on transparency at the UPC (Access to information on proceedings at the Unified Patent Court), as well as a European and unitary patents checklist.

How we can help

Our fully integrated, market leading team, is on the ground in France, Germany, Italy and the UK and has decades of experience in running multi-jurisdictional patent litigation in respect of our clients' most valuable products. The Herbert Smith Freehills pan-European patent team has already been active in the UPC, representing several parties in multiple actions.  

We are able to use legal, technical and strategic skills from across our whole European team to give you the best advice on your UPC or national matters, with the qualifications necessary to handle cases whether they are in the UPC or key national courts. 

The new UPC court system has jurisdiction over EPs in all participating EU member states (currently 18), but litigation will also need to continue in non-participating EPC states, including the UK and the EU member states that have not yet ratified the UPC Agreement or do not intend to, and in national courts of participating states in relation to EPs opted out of the UPC's jurisdiction. 

So, the picture for patent litigation across Europe is more multi-jurisdictional than ever.

Our team has unrivalled experience the execution and management of multi-jurisdictional patent litigation, which continues to be a key element of patent enforcement in Europe with actions proceeding both in the UPC and national courts. 

For more information and advice on the new system please contact Laura Orlando, Sebastian Moore, or any of the other key contacts listed below, and also see our UPC & UP hub and our series of UPC blog posts and briefings.