The UPC turns 2 this year – What has the Unified Patent Court been up to?

While primarily “insiders” like representatives before the Unified Patent Court (UPC) voice concerns about its current, often-critiqued case management system (CMS)—with a new version reportedly under development in cooperation with the EPO—one notable aspect is the transparency the UPC aims to provide. The Court itself can generate statistical data about its cases and managed cases, offering a view of the bigger picture and it publicly shares insights through regularly published annual reports. In the latest UPCS annual report for 2024 the court looks back on its first 1,5 years and presents some statistics about how it is doing.

Locations of the UPC

The UPC started its operation on June 3rd, 2023, with its first oral hearings taking place that same month. It is interesting to observe the UPCs map, which indicates the locations of the relevant UPCs Institutions, that all originally signing countries, except Bulgaria are host to at least one UPC institution. Since the start of the UPCs operation Romania has further joined the list of UPC states, where the UPCA is in force. The only EU-countries, which have not yet signed the UPCA are Croatia, Poland and Spain.

The Unified Patent Court is structured in centralized authorities and localized authorities —designed to balance uniform legal standards with efficient, handling of cases in the region typical languages. In its center is the central division, operating out of Paris (with thematic sections in cities like Munich and Milan), the central division serves all contracting states and handles cases that have broader significance or require consistent interpretation of patent law. Proceedings here are conducted in the language in which the concerning patent was granted, and they provide a unified framework to ensure that key issues are decided under a consistent legal approach.

In contrast, many individual member states have opted for local divisions. These local divisions act as more accessible, national-level courts where disputes can be resolved without the need to impose the central division’s workload. Operating primarily in the local language—often alongside English—local divisions help streamline the litigation process.

In addition to the central and local division, there are also the regional divisions. These are designed to cover clusters of countries, particularly where smaller states are close to each other. For example, a regional division might serve several Nordic or Baltic states through a centralized venue, thereby ensuring a seamless application of legal principles without over- or under burdening individual local divisions.

Next to the qualified courts, the UPC also establishes a mediation and arbitration center, which aims to provide an alternative dispute resolution services for patent-related conflicts. Since the establishment in 2023 of the UPC, there has been the assignment of the Director of the Patent Mediation and Arbitration center, Ales Zala, on September 9th, 2024.

How fast is the UPC?

One of the biggest promises of the UPC was speed. At the beginning the UPC promised to deliver decisions on the merits within 13-14 months from filing. So far it seems to meet this goal.

An infringement action is decided on within 13.5 months, revocation actions take on average 12.7 months, counter claim revocations are interestingly a few months faster, with an average of 10 months. Appeals are on average handled within fewer than 5 months and provisional measures on average within fewer than 3, or even 1 months.

All in all, the UPC currently seems to deliver on its speed promise. However, it is important to keep in mind, that the court is merely running for 18 months, so it remains to be seen, if there are a few long-term cases still in progress, which will skew these statistics to the slower end, especially concerning the infringement cases, which seem to take the longest as of now.

Where are the most UPC cases handled?

Prior to the UPC, the German district courts in Munich, Düsseldorf and Mannheim were already handling a lot of infringement cases in Germany, which used to be a popular country to file for patent infringement in Europe. With the introduction of the UPC it was unclear, whether this would change and shift to potentially other locations of the UPC. For the first 1.5 years however, it still seems as if the locations in Munich, Düsseldorf and Mannheim are the main places, where infringement in front of the UPC is negotiated. Paris is handlng the most revocation cases, since it is the only chamber where a revocation action can be filed, unless it is a Counterclaim revocation.

In total 164 cases for infringement have been filed at the UPC, with 148 cases of revocation, pointing out, that the best defense for infringement still is to request the revocation of the patent, with 90% of the infringement cases also covered by an equivalent revocation proceeding.

Which nationalities are most represented as claimant and defending parties at the UPC?

Each action in front of the UPC has a claimant, who files a case and a defendant, who defends against the case. The super nationality of the UPC offers interesting insights into the nationality of the fighting parties. While German, US-American and French companies seem to be the leading claimant parties, German, US-American and Japanese companies seem to be the main defendant companies. China so far only plays a negligible claimant or defendant role.

The above observation may seem obvious, since larger economies usually also hold more patents and have more interest in litigating their patents. However, it is still surprising, that China is playing such a small role in both claimant and defendant roles. It would be interesting to see in the statistics if the nationality of the claimant includes European subsidiaries or not. For example, are non-European companies, that have a German subsidiary also included in the DE bar or in their corresponding foreign bar. It would be interesting to get this information in future versions of this report.

It is further noteworthy, that the NL and IT bar is adjusted for economic size surprisingly overrepresented, stating that the UPC is indeed handling infringement cases, Europe wide and that particularly the Dutch seem to favor the UPC in filing their infringement actions.

Which technical fields are the most handled at the UPC?

The UPC, with its 79 technically qualified judges, handles a wide variety of inventions. Inventions and Patents are usually classified into IPC classes, which generally describe the technical field, that an invention originates in. The coarsest distribution is according to the classes A-H. Meaning [4]:

• A Human necessities
• B Performing Operations; Transporting
• C Chemistry; Metallurgy
• D Textiles; Paper
• E Fixed Constructions
• F Mechanical Engineering; Lighting; Heating; Weapons; Blasting
• G Physics
• H Electricity

Within the first 1.5 years the UPC has mainly handled cases concerning Electricity, which also contains telecommunication and microelectronics and Human necessities, which includes microbiology and gene editing techniques. The textile and paper industry, however, seems to be rather reluctant to adopt the services of the UPC so far.

What are some of the most important decisions of the UPCs court of the first instance so far?

To date, more than 633 orders and decisions, both procedural and substantive, have been issued at first instance, of which some of the most insightful ones are reported below.

Change of language of proceedings

In UPC_CFI_88/2024 (Tandem Diabetes Care Inc. & VitalAire GmbH v. Roche Diabetes Care GmbH), the Court ruled that a request to change the proceedings’ language to that of the granted patent must take into account all relevant circumstances and party positions—and if interests balance equally (as with international parties), the defendant’s position is decisive.

In UPC_CFI_525/2024 (Easee B.V. and others v. Visibly Inc.), the Court decided that a language change—and the required translation of existing documents—should favor speedy case handling in the patent’s granted language, with discussions based on the originally submitted English written submissions and exhibits.

Stay and EPO opposition proceedings:

In UPC_CFI_80/2023 (Astellas Institute for Regenerative Medicine v. Healios K.K and Osaka University), the Court exercised its discretion to stay proceedings pending a rapidly expected EPO decision (with a concrete near-term date), after properly weighing the interests of both parties.

In UPC_CFI_380/2023 (Meril v. Edwards Lifesciences Corporation), the Court confirmed that it may stay proceedings during the written phase for a patent that is also under opposition before the EPO if a quick decision is anticipated, clarifying that the mandatory stay under Rule 118.2(b) applies only in oral proceedings and that a stay request under Article 33(3)(b) can be dismissed when no bifurcation has been proposed.

Grounds for extension of time limit:

In UPC_CFI_169/2024 (Xiaomi Technology v. Daedalus Prime LLC), the Court held that the need to coordinate with non‐European suppliers or the imposition of restrictive confidentiality obligations does not justify an exceptional time-limit extension since the Rules of Procedure (specifically R. 262A) already provide adequate protection for confidential information.

Security for costs:

In UPC_CFI_54/2024 (Headwater Research LLC v. Samsung Electronics), the Court explained that when considering an order for security for costs under Art. 69(4) UPCA and R.158 RoP, the defendant must substantiate its concerns with credible reasons and evidence showing that the claimant’s financial position might hinder recoverability or enforceability of a costs order. Once these reasons are set out, it is incumbent on the claimant to rebut them, noting that the claimant’s relative financial status—especially a specially funded patent enforcement entity—is not by itself a decisive factor.

Order for preserving evidence:

In UPC_CFI_397/2023 (C-Kore Systems Limited v. Novawell), the Court ruled that an application to preserve evidence must be supported by reasonably available evidence of the alleged infringement, as required by Art. 60 UPCA. A filing delay of less than three months is treated as a reasonable standard procedure rather than an urgent one. Furthermore, the Court emphasized that the measures to preserve evidence must be executed in accordance with the national law of the implementing jurisdiction (here, French law), and that access to the gathered information should be limited to the parties’ representatives via a confidentiality club, particularly regarding trade secrets.

Alternative service:

In UPC_CFI_495/2023 (ICPillar v. ARM), given that the United Kingdom is a non‑EU country, the Court’s service of process was to follow the Hague Service Convention under R. 274 RoP. However, under R. 275.2 RoP, the Court accepted an alternative service method proposed by the Claimant—sending a letter via FEDEX and DHL coupled with a bailiff’s report confirming dispatch and receipt—while formal service had yet to be completed.

Imminent infringement:

In UPC_CFI_165/2024 (Novartis AG v. Celltrion), the Court held that a situation can be deemed one of imminent infringement when all necessary preparatory steps for infringement have been completed—even though the actual infringement has not yet occurred—with the precise circumstances to be evaluated on a case‐by‐case basis.

Lack of urgency:

In UPC_CFI_317/2024 (Telefonaktiebolaget LM Ericsson v. Asustek Computer Inc. et al.), the Court explained that in provisional measures the applicant must clearly indicate when it became aware of the infringement to prove urgency. Where this information is absent, the Court may rely solely on the alleged infringement date to assess if there has been an unreasonable delay in initiating proceedings.

Product claim and risk of first infringement:

In UPC_CFI_201/2024 (Syngenta Limited v. Sumi Agro), the Court ruled that for product claims directed to a composition it is sufficient for the applicant to allege and prove that at the time of any act of use the composition contained all features of the claimed invention, or that there is an imminent risk of such use. Moreover, when a patent‐infringing composition is distributed outside the Contracting States while being advertised within them, a risk of first infringement arises; to eliminate this risk the respondent should offer a cease‐and‐desist declaration with a penalty clause. Additionally, for provisional measures, the number of legal challenges to the patent’s validity must be limited to the three strongest arguments selected by the respondent.

Entitlement, rebuttable presumption and weighing of interests:

In UPC_CFI_368/2024 (Valeo Electrification v. Magna), the Court confirmed that for European Patents the material proprietor is presumed to be the patent proprietor, supported by a strong rebuttable presumption upon registration (unless the title is manifestly erroneous). The Court further held that allegations of bad faith by the applicant cannot tip the balance in the defendant’s favor if no timely vindication action was initiated before national courts, and that the assessment of the likelihood of invalidity should rely solely on the specifics of the patent in suit rather than on general revocation rates.

Confidentiality guidelines:

In UPC_CFI_355/2023 (Fujifilm Corporation v. Kodak GmbH) the Court balanced a party’s right to full access to its file (thereby ensuring the right to be heard) against the need to protect alleged confidential information. Applicants must back up each redaction with concrete, case‐specific reasons rather than relying on general competitive arguments, and the Court subsequently determines the appropriate level of certainty to accept such claims—while mandating that at least one natural person and their legal representative per party must have file access to guarantee a fair trial.

Confidentiality and public access (Same party):

In UPC_CFI_255/2023 (Edwards Lifesciences Corporation v. Meril Italy srl), the UPC framework was clarified to allow different related entities to challenge a patent independently. For example, a wholly owned subsidiary may launch its own revocation action even if an infringement/invalidity case is already pending against the parent company.

Connection joinder (R. 340 RoP):

In UPC_CFI_380/2024 (Eoflow Co., Ltd. v. Insulet Corporation), the Court held that handling parallel cases simultaneously—together with the appointment of two judges in both proceedings—is an effective measure to avoid contradictory decisions.

Bifurcation:

In UPC_CFI_201/2023 (N.V. Nutricia v. Nestlé Health Science), although the panel is expected to rule on procedural matters under Art. 33(3) UPCA soon after the written phase (per Rule 37.1 RoP), it may decide earlier under Rule 37.2 RoP when the parties are heard. Joint hearings of infringement actions and counterclaims for revocation were found to promote both efficiency and a consistent interpretation of the contested patent—particularly important in complex chemical/pharmaceutical cases, where the expertise of experienced judges and a technically qualified judge (TQJ) ensures robust decision‐making.

Public access to the Registry:

In UPC_CFI_131/2024 (Powell Gilbert LLP v. Abbott, Sibio & Umedwings), the Court underscored that facilitating public understanding and scrutiny of decisions is a legitimate reason for granting access to first-instance documents. Moreover, when an appeal is filed, a 15‑day period must be observed before such access is granted, balancing transparency with the need to safeguard the integrity of the proceedings.

Claim interpretation:

In UPC_CFI_1/2023 (Sanofi v. Amgen), the Court clarified that a patent claim must be interpreted for its technical meaning rather than by a purely literal (philological) analysis. The skilled person is expected to derive the technical function of claim features using the description and drawings—with the description sometimes serving as its own lexicon. The decision also emphasized that for priority purposes (Article 87 EPC), a claimed invention is the “same invention” if its subject matter can be derived directly and unambiguously from the previous application using common general knowledge. In assessing inventive step, the starting point is a realistic reference from the prior art (with multiple such starting points possible), and the key issue is whether the claimed solution would have been arrived at without an inventive contribution—even if technical advantages are evident, an arbitrarily chosen feature alone cannot establish non-obviousness.

Confidentiality and public access:

In UPC_CFI_230/2023 (Abbott v. Dexcom), the Court applied Article 9.3 of the EU Directive on Trade Secrets to balance the need for a fair trial with potential harm to either party, highlighting that extending access beyond the UPC (for example, to a Respondent’s law firm involved in parallel national proceedings) may undermine the effectiveness of confidentiality measures.

In UPC_CFI_75/2023 (Astellas v. Helios Riken Osaka University), the Court ruled that after proceedings have ended—such as by settlement—the balance of interests typically favors granting access to written pleadings and evidence under Rule 262, subject to redaction of personal data and confidential information; similarly, applications to release information normally excluded (per Rule 262.2) may be approved if no legitimate reasons exist to withhold access.

In UPC_CFI_457/2023 (Dolby and Access Advance v. HP), the Court confirmed that an intervener is treated as a party and must include at least one natural person (in addition to legal representatives) among those entitled to access confidential information in accordance with the applicable procedural rules.

Carve out and international jurisdiction:

In UPC_CFI_230/2023 (Abbott v. Dexcom), the Court reaffirmed that the parties determine the subject‑matter of the dispute under Art. 76(1) of the UPC Agreement. This “carve out” allows a claimant in a main action to exclude certain acts of infringement to avoid parallel proceedings during the transitional period. However, this principle does not prevent a defendant from challenging the validity of the underlying European patent. Moreover, the Court made clear that its international jurisdiction is governed directly by Brussels Ibis (Art. 29–31 of the UPC Agreement and Regulation (EU) No 1215/2012) without needing to invoke other provisions like Art. 71c of the UPC Agreement.

Claim scope and interpretation:

In UPC_CFI_373/2023 (Sodastream Industries Ltd v. Aarke AB), the Court held that a patent claim must be interpreted broadly—it is not limited to its preferred embodiments but covers what a skilled person would understand from the claims when read in light of the description and drawings as a whole. While the claim itself defines the overall protective boundary (in line with Art. 69(1) S. 1 EPC), the description and drawings serve as interpretative tools, and any specific embodiment shown does not unduly restrict that scope. If the patent differentiates itself from prior art in its description, that distinction must be maintained. Also, since the right of publication carries a punitive element, it should only be granted when other measures do not sufficiently ensure effective protection.

Patent amendment and partial revocation:

In UPC_CFI_309/2023 (NJOY v. Juul Labs International), the Court confirmed that during a revocation action a patent owner (acting as defendant) may indicate that it wishes the Court to consider its application to amend the patent to limit its scope. The Court, in line with procedural principles (Art. 76(1) UPCA), may then revoke the patent only in part by applying a corresponding amendment to the claims. The Court stressed that Art. 65(3) UPCA applies solely to the granted patent, and it is not obliged to evaluate an amendment unless a complete claim set is allowed. Claim interpretation remains a question of law, which the Court can address at any stage of the proceedings.

What are some of the most important decisions of the UPCs court of Appeal so far?

To date, more than 50 orders and decisions, both procedural and substantive, have been issued at the court of appeal, of which some of the most insightful ones are reported below.

Claim construction and provisional measures:

In UPC_CoA_335/2023 (NanoString Technologies v. 10x Genomics), the Court rectified its earlier decision and clarified that when considering provisional measures the judge must assess compliance with the requirements under Rules 206.2(b)–(e) RoP as a matter of merit. The patent claim remains the key starting point for establishing the protective scope under Art. 69 EPC, but its interpretation must also draw on the description and drawings as explanatory aids. This approach, taken from the viewpoint of a skilled person, ensures a balance between adequate protection for the patent proprietor and legal certainty for third parties. Moreover, the Court held that a sufficient degree of certainty regarding an applicant’s entitlement and infringement must be established on the balance of probabilities—with the burden of proof for entitlement and infringement on the Applicant and for lack of validity on the Defendant.

In UPC_CoA_1/2024 (VusionGroup v. Hanshow Technology), the Court stressed that claim features must be interpreted in light of the overall claim.

Substantiation and procedural exchanges:

In the Volkswagen case (UPC_CoA_265/2024, UPC_CoA_267/2024, UPC_CoA_270/2024, UPC_CoA_275/2024, UPC_CoA_277/2024, and UPC_CoA_279/2024, Volkswagen v. Network System Technologies), the Court determined that proceedings under Rule 361 RoP should be used only in clear-cut cases and must not trigger a full rehash of arguments and evidence. Although the UPC procedure is front-loaded, claimants are not expected to anticipate every possible defense in their initial Statement of Claim; additional arguments and evidence can be submitted later (e.g. via a Statement under R.29). The sufficiency of the claims is a matter for the Court of First Instance to decide after considering all submissions, and detailing an exemplary infringing embodiment alongside a list of similar embodiments does not automatically render the action manifestly unfounded.

Appeals on provisional measures:

In UPC_CoA_182/2024 (Mammut Sports Group v. Ortovox Sportartikel), the Court of Appeal ruled that it may, at its discretion, consider submissions that were improperly excluded at first instance provided all circumstances are taken into account.

The scope of an appeal in proceedings reviewing provisional measures is generally limited to the submissions made at the time the measures were ordered.

To ensure legal certainty and proper administration of justice, the Statement of grounds must be sufficiently clear and precise—even though the Court is not required to search annexed documents or evidence from previous pleadings—for both the Respondent to build a defense and for the appellate decision.

Pleadings submitted only after the oral hearing will not be considered.

Delay in filing for provisional measures is measured from the time when the Applicant became (or should reasonably have become) aware of the necessary facts and evidence; whether such a delay is unreasonable depends on the individual case.

Notably, showing irreparable damage is not a prerequisite for the ordering of provisional measures, and the rules governing provisional orders (R. 263 RoP) also apply.

Evidence preservation and inspection:

In UPC_CoA_177/2024 (Progress Maschinen & Automation v. AWM), the Court clarified that an application under Article 60 UPCA for preservation of evidence or inspection of premises inherently implies a request for the disclosure of the resulting evidence (including reports) for use in later proceedings on the merits.

The purpose is not only to preserve evidence but also to enable a decision on initiating merits proceedings and on the extent of using the evidence.

A grant of such an application does not amount to an unconditional order: if confidential information is involved, the Court must first hear the other party, allowing them to request that certain information remain confidential.

In handling confidentiality claims, the Court must provide both sides the opportunity to argue their positions, with the possibility of limiting access to the evidence to authorized representatives under strict non-disclosure terms.

Need for Technically Qualified Judges, Access to the Register:

In UPC_CoA_472/2023 (Guangdong Oppo Mobile Telecommunications v. Panasonic Holdings):

the court orders, that in appeals that do not raise technical issues, the Court of Appeal may decide without the need for technically qualified judges. In this case, a last‐minute request by the appellant to shorten the time for lodging the Statement of Response was dismissed in order to protect the respondent’s interests and uphold due process—even though this meant that, in the Court of First Instance, the Statement of Defence must be submitted in the contested language of the proceedings.

In UPC_CoA_404/2023 (Ocado v. Autostore) Article 9(1) UPCA is to be interpreted so that if an appeal involves only non‐technical subject matter, the matter may be decided by a panel of three legally qualified judges without assigning two technically qualified judges. Should technically qualified judges be assigned, they are required to consider the dispute in its entirety, including non‐technical aspects. In addition, when a request is made under R.262.1(b) RoP to grant a member of the public access to written pleadings and evidence, the public’s interest must be balanced against interests such as confidentiality, protection of personal data, and the overall integrity of the proceedings. It is also emphasized that a reasoned request under R.262.1(b) RoP is distinct from an application under R.262.3 RoP.

Requests for change of language in proceedings:

In UPC_CoA_101/2024 (Curio Bioscience v. 10x Genomics), the Court held that when a party seeks to change the proceedings’ language to that of the patent on fairness grounds, all case-specific circumstances must be considered—with a special weight on the defendant’s position when the interests are otherwise balanced.

In UPC_CoA_207/2024 (Advanced Bionics v. MED-EL Elektromedizinische Geräte), the Court emphasized that the fact the parties are domiciled in countries where the claimant’s chosen language is official is a significant factor. The ruling also clarified that under Art. 49(5) UPCA, an application to change the language need not be included in the Statement of defence; indeed, submitting the request early is preferable to allow an early implementation if granted.

In UPC_CoA_349/2024 (Google Commerce v. Ona Patents), the Court added further considerations for language change requests. In addition to the factors outlined in the earlier order, it noted that the internal working language of the parties and their ability to coordinate internal technical support are relevant, whereas parallel national proceedings between the same parties are less significant.

Financial security for costs:

In UPC_CoA_218/2024, UPC_CoA_220/2024, and UPC_CoA_222/2024 (Volkswagen v. Network System Technologies), the Court explained that when deciding on a request for security for costs under its discretion (Art. 69(4) UPCA and R.158 RoP), it must assess whether the claimant’s financial situation genuinely raises concerns about the recoverability or enforceability of a potential order for costs. The Defendant bears the burden of substantiating such concerns, after which the claimant must challenge them substantively. Moreover, the mere comparison of the parties’ financial positions does not automatically justify a security order, particularly when limited funding in a special purpose patent enforcement entity is a deliberate business decision.

What to expect in 2025?

Looking ahead, the Registry is set to work in improving the service for both the Court and its users. One of the key projects on the UPCs agenda is to improve the Case Management System built to meet the high standards expected from an international patent court. Along with launching this next-generation system, a refreshed look of the Registry can be expected—designed to boost transparency and satisfy growing public demand.

But it’s not just about the tech. The UPC is also putting a strong focus on growing the Court and its team. That means making a real effort to recruit and retain the right people, while providing them with the training and tools they need to really excel. The UPC further plans on backing the establishment of the Patent Mediation and Arbitration Centre (PMAC), with the aim of having it up and running as early as 2026.

Sources:

1. https://www.unified-patent-court.org/sites/default/files/upc_documents/UPC_AR_2024_HD_digital_version_double_page_compressed.pdf
2. https://en.wikipedia.org/wiki/Unified_Patent_Court
3. https://www.unified-patent-court.org/sites/default/files/upc_documents/rop_en_25_july_2022_final_consolidated_published_on_website.pdf
4. DPMA | International Patent Classification IPC

Dr. Alexander Schuld

Partner

Dr. Mark Standke

Patentengineer