Unified Patent Court captures 15% of European patent litigation but still far from being primary European patent court

Commentary by Partner Nicholas Fox has been featured in Law Society Gazette, Law Society of Ireland Gazette, World IP Review, Life Sciences Intellectual Property Review, The Canadian Lawyer and The Australian Lawyer, looking back at one year of the Unified Patent Court (UPC) and discussing how national courts still dominate patent litigation in Europe.

Read the extended press release below.

One year in, the jury is still out on the new UPC as its caseload is still dwarfed by national courts, say leading intellectual property law firm Mathys & Squire.

The UPC opened on June 1, 2023 with the aim of becoming Europe’s primary patent court. In its first year of operation, 205 cases were filed at the court (134 infringement cases, 39 revocation actions and 32 provisional measures actions). This represents around 15% of the total number of patent cases filed in Europe in 2021, when a total of 1,275 patent law cases were heard in the UK, Germany, France, Italy and the Netherlands combined.

Although 205 cases in an initial year is an impressive total, the UPC still has a long way to go before it becomes Europe’s primary court for patent litigation. The UPC’s caseload places it slightly ahead of the French courts, which heard 174 patent cases in 2021, and a long way behind Germany, which heard 841 patent cases that year.

Most important of all, very few UPC cases have yet to reach any form of conclusion. That is not unexpected. Under the UPC’s court rules, cases are expected to reach a final hearing in 12 months with decisions issued shortly thereafter. It is only now that the Court has been running for a full 12 months that we can start to expect the Court to begin issuing substantive decisions. Up until now, the Court has only ruled on a handful of cases, primarily on procedural issues.

It is likely to be quite some time before the jurisprudence of the UPC resembles anything approaching a settled state. Although there should be a steady stream of substantive decisions over the next 12 months, such decisions will only be decisions at first instance. It will not be until settled practice begins to develop through a substantial body of decided cases or cases are referred to the UPC Court of Appeal that the approach of the new court to substantive patent law is likely to become clear.

UPC case numbers dwarfed by other courts

A slow start for the UPC was baked-in by design.

The UPC has no jurisdiction over patents granted by national patent offices. However, a significant proportion of European patent disputes relate to such national patents rather than to patents granted by the European Patent Office, over which the UPC does have jurisdiction.

Nor does the UPC jurisdiction extend over all European countries. The UK was forced to withdraw from the UPC following Brexit and many significant European countries, notably Spain and Poland have chosen not to join the new system.

Additionally, patent holders have the choice to opt patents out of the jurisdiction of the court and around two-thirds of European patents in existence when the court opened were opted-out. This will have included the vast majority of patents which patent holders thought might have been the subject of third-party revocations actions before the UPC.

The 39 stand-alone revocation actions brought before the UPC in its first year is in stark comparison with the thousands of oppositions filed annually at the European Patent Office (EPO). Although the total number of UPC revocation actions will be bolstered by counterclaims for invalidity brought against patents which are sought to be enforced in the UPC, such numbers are dwarfed by the 3,775 oppositions filed in the EPO in 2022 and are likely to continue to be so for the foreseeable future.

Says Nicholas Fox: “The success of the UPC in attracting work to date is significant – but that shouldn’t be overstated. When we compare the UPC to other national patent courts we see that the UPC is still just one of many courts developing European patent case law.”

“Currently, most businesses tend to focus on bringing patent cases at a national level. If the UPC wants to become Europe’s hub for patent litigation it has to convince patent holders that litigating continent-wide is worthwhile.”

“Both corporates and lawyers will also need to become more comfortable that the UPC will deliver predictable and very robust judgments. At the moment, most of the very big ticket patent litigation, for example in pharmaceuticals, is staying within the national court systems.”