UPC: A Year of Pawsitive Progress

Introduction:

One year after its establishment on 1 June 2023, the Unified Patent Court (‘UPC’) has seen significant activity and notable trends.

Language:

English has become the predominant language for UPC proceedings, accounting for 51% of cases, while German is used in 43% of cases. This shift reflects the international nature of the court and the preference for English in many multinational legal contexts. The remainder of cases can be divided as 2% Dutch, 2% Italian, and 2% French [1].

Number of cases and locations:

In total, the UPC has handled 474 cases [2].

This includes 170 infringement actions, with a significant number concentrated in German cities: Munich (67 cases), Düsseldorf (36 cases), Mannheim (24 cases); Paris (11 cases); Hamburg (8 cases).

The Nordic-Baltic regional division, Milan local division, and The Hague: 6 infringement actions each; Brussels: 1 infringement action; and Helsinki, Copenhagen, Vienna , and Paris central division: 1 infringement action each [2].

Revocations:

There have been 192 counterclaims for revocation actions, including 85 individual actions. The court has issued 39 provisional measures, which often involve urgent decisions such as preliminary injunctions​.

There have been 41 stand-alone revocation actions filed to date – 36 received at the Paris central division, 4 filed at the Munich central division, and 1 with the Milan central division.

A defensive strategy of initiating preemptive revocation actions in the central division has emerged, allowing the revoking party to gain an advantage. This can lead to stays or transfers of subsequent infringement actions to the central division​ [2].

Injunctions:

The UPC has shown a willingness to issue preliminary injunctions, both ex-parte and inter-partes. This has required detailed and persuasive evidence at early stages, highlighting a trend towards front-loading in litigation strategies​. [3]

Transparency:

A significant decision in the Ocado v. Autostore case has enhanced transparency by allowing third parties with a direct interest to access court documents and evidence, while still maintaining confidentiality. This approach aims to balance the public’s interest with the protection of sensitive information and the integrity of the proceedings.

Appeals and Jurisdiction:

The UPC’s Court of Appeal has played a crucial role in defining procedural aspects, such as the necessity of including technically qualified judges in specific cases. This may reflect the court’s adaptability in handling various legal questions.

The UPC’s Court of Appeal has received 28 appeals under RoP220.1 and 48 appeals under RoP220.2; 3 requests for discretionary review, 8 applications for suspensive effect and 21 applications for an order for expediting an appeal [2].

Feedback:

Judges and practitioners have reflected on the UPC’s first year, noting the challenges of procedural dynamics and the evolving landscape of European patent litigation.

The UPC’s commitment to swift proceedings and its structured framework are expected to contribute to its increasing success in the coming years​.

Conclusions:

Overall, the UPC’s inaugural year has been marked by active litigation, strategic use of language and jurisdictional options, and significant procedural developments. The court is set to play a crucial role in European patent enforcement and revocation moving forward.

This article is intended for general informational purposes only and should not be considered legal advice. Read other articles on the Unitary Patent and the UPC in our blog – The Patent Alphabetical!

References:

[1] Unified Patent Court (UPC) – https://www.unified-patent-court.org/en

[2] Case load of the Court since start of operation in June 2023 – update end July 2024 – https://www.unified-patent-court.org/en/news/case-load-court-start-operation-june-2023-update-end-july-2024

[3] Unified Patent Court (UPC) – https://www.epo.org/en/applying/european/unitary/upc

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