The Unified Patent Court (UPC) represents a transformative development in European patent litigation. Fenwick’s Ryan Johnson teamed up with Bird & Bird’s Boris Kreye and Chris de Mauny to explore important considerations and strategies based on the UPC’s first two years of operation. Here are some key takeaways:
The UPC serves as a unified forum for patent disputes across 18 participating European Union member states, with additional countries expected to join. The court features a central division split among Paris, Milan, and Munich, as well as several local and regional divisions across member states.
While this appears to offer numerous venue options for litigants, litigation has been clustered in Germany and (to a somewhat lesser extent) Paris, as discussed further below. In this way, UPC litigation is consistent with U.S. experience, where the majority of patent litigation proceeds in a handful of more experienced district courts. Indeed, the UPC’s approach to assessing proper venue appears more lenient than the U.S. approach, giving patentees even greater leeway to litigate in the venue of their choosing.
A fundamental difference from U.S. practice is the UPC's panel structure. Cases are heard by multinational panels of three to four judges, including technical judges with subject matter backgrounds—contrasting sharply with U.S. district courts' generalist single-judge model, and perhaps more closely approximating the U.S. Patent Trial and Appeal Board’s (PTAB) technically trained, three-judge panel approach. The UPC aims to deliver first-instance decisions within 12-14 months, significantly faster than typical U.S. patent litigation timelines.
Early UPC statistics reveal active participation from both tech and life sciences sectors. Major tech companies have emerged as frequent plaintiffs, particularly in telecommunications and electronics disputes. In life sciences, litigation has centered on medical devices and pharmaceutical patent disputes.
Notably, the UPC has attracted both large multinational corporations and smaller innovative companies, suggesting its accessibility to entities of varying sizes. The court's multinational reach makes it particularly attractive for companies seeking broad European enforcement through a single action.
The German local divisions, particularly Munich and Düsseldorf, have emerged as preferred venues, handling approximately 76% of infringement actions. This concentration reflects these courts' historical patent litigation experience and reputation for technical sophistication.
When selecting a venue, companies should consider:
The UPC offers injunctive relief as its primary remedy, with injunctions being the rule rather than the exception—a difference from U.S. practice where patentees seeking injunctions face higher hurdles. Additional available remedies include:
While enhanced damages for willful infringement are not available (unlike in the U.S.), the UPC does provide for recovery of reasonable attorney fees by the prevailing party.
For preliminary injunctions, the UPC has demonstrated a more receptive approach than U.S. courts. While U.S. courts often view preliminary injunctions skeptically in patent cases, the UPC treats them as a legitimate enforcement tool, provided the patent's validity appears strong and infringement is readily ascertainable. This may make the UPC a particularly attractive option for patentees considering global enforcement strategies, while potential defendants should be cognizant of the risk of preliminary injunctive relief across the UPC’s participating states.
The UPC's approach to claim interpretation balances literal claim language with context from the specification and drawings, similar to U.S. practice. However, several distinct features affect litigation strategy:
First, the court permits patent amendments during proceedings, requiring parties to develop responsive strategies midstream—a significant departure from U.S. litigation. This flexibility can benefit patent owners but demands rapid tactical decisions under compressed timelines.
On doctrine of equivalents, the UPC has begun developing its own framework, considering:
For life sciences companies, the UPC has shown particular attention to second medical use claims, requiring objective suitability for the claimed therapeutic use and knowledge by alleged infringers that their actions may lead to the claimed use.
The UPC's emerging jurisprudence suggests a forum that balances strong patent protection with practical commercial considerations. For U.S. companies operating in Europe, understanding these distinctions is crucial for developing effective patent enforcement and defense strategies. The court's broad territorial reach, specialized technical knowledge, and efficient timeline make it an increasingly important venue for resolving patent disputes in the European market.
Watch the full webinar and learn more about Fenwick’s patent litigation capabilities.