The UPC - Only Three Years Old and Already Leading

1. UPC as a Key Venue in European Patent Litigation: In just three years, the Unified Patent Court (“UPC”) has attracted already a large number of European infringement actions due to its powerful remedies, speedy proceedings, and its ability to handle disputes that reach even beyond its member states (so-called long-arm jurisdiction). In view of the raising case numbers as well as the prominence of various litigants it can truly be said that the UPC is establishing itself as one of the key venues for patent litigation in Europe.

2. UPC Court of Appeal Is Shaping the Law: Not only the case numbers in first instance proceedings raise, but also the UPC’s Court of Appeal has already issued influential decisions. Topics already addressed include for example claim interpretation, inventive step, or provisional measures, while other topic such as the doctrine of equivalents are still waiting to be clarified by the Court of Appeals

3. The UPC’s Influence Is reshaping European and Global Patent Strategy: Because of its efficiency, cross-border reach, and the strength of its remedies, patentees are increasingly choosing the UPC over national courts. Filing patterns and judge movements (especially from German national courts) show a clear shift toward the UPC as a central platform for European patent enforcement, with FRAND and SEP issues expected to grow in importance, while also more and more pharmaceutical companies are testing this new venue.

Since opening for filings on 1 June 2023, the Unified Patent Court (UPC) has become the key forum for patent litigation in Europe. Given its efficiency, speed, and powerful remedies even going beyond the 18 present UPC member states, the UPC is an attractive forum for patent owners. This is confirmed by the figures, since the majority of case filings have been initiated by rightsholders (351 infringement actions and 72 requests for provisional measures as of 30 June 2025, while only 69 standalone revocation actions had been brought).

In the three years of their existence, the local divisions (LDs) and central divisions (CDs) of the UPC have already generated numerous decisions.

As case law of the UPC’s Court of Appeal (CoA) increasingly clarifies remaining legal questions, the new court system is set to become even more popular and an indispensable building block of any global patent strategy. This article provides an overview of some significant developments in UPC case law.

Jurisdiction

An interesting question is whether the UPC can rule only over acts committed in its member states, or if it has a “long arm” extending beyond. Several decisions issued by the UPC’s Local Divisions in 2025 affirmed the “long arm” once jurisdiction over the defendant had been established.

An example is Fujifilm v Kodak (LD Mannheim, decision of 18 July 2025, UPC_CFI_365/2023), which concluded that the UPC has jurisdiction over the UK part of a European patent in light of the European Court of Justice’s (CJEU’s) recent ruling in BSH v Electrolux (C-339/22). This pertains not only to infringement, but the UPC may even rule on validity with inter partes effect. The UPC cannot invalidate the UK part with effect for everybody, though (no erga omnes effect).

The UPC is set to gain even more traction with patentees in view of this development, as it further increases the value of a single and efficient UPC infringement suit.

Infringement

The UPC can grant powerful remedies against infringers, such as a (permanent) injunction, provision of sales information and rendering of accounts, product recall, and damages awards. The UPC’s early case law addressed material aspects, such as the qualification of infringing acts, claim construction, and the doctrine of equivalents:

Infringers and Remedies Against Them

In Philips v Belkin (decision of 3 October 2025, UPC_CoA_534/2024), the Court of Appeal clarified several important points regarding the question of who is an infringer.

Besides the party acting by itself, according to the CoA, an instigator, accomplice or accessory to whom the acts are attributable may also be considered an infringer.

However, the position as a managing director of a corporation committing patent infringement does not by default lead to personal liability of the director. The CoA expressly distanced itself from German case law in this context.

According to the CoA, the managing director can only be held liable if his/her contested act goes beyond the typical professional duties as managing director. This can be the case, for instance, if the director knows that the corporation commits an act of infringement, also realising the unlawfulness of the act, but does not terminate it although that would be reasonable and possible for him/her to do. According to the CoA, he/she may generally rely on legal advice on the question of patent infringement as long as there is no court ruling to the contrary.

Claim Interpretation

Claim interpretation plays an essential role for determining infringement and validity.

In 10x Genomics v Nanostring (order of 26 February 2024, UPC_CoA_335/2023), the Court of Appeal held that the patent claim serves not only as the starting point of claim construction, but the claim is the decisive basis for determining the protective scope of a European patent (Art. 69 EPC and the protocol on its interpretation). The interpretation of a patent claim does not solely depend on the strict, literal meaning of the wording used. Rather, the description and the drawings must always be used as explanatory aids for the interpretation and not only to resolve any ambiguities in the patent claim. A patent therefore constitutes its “own lexicon” (CoA, order of 11 March 2024, UPC_CoA_335/2023, App_576355/2023 – 10x Genomics v NanoString; CD Munich, decision of 16 July 2024, UPC_CFI_1/2023 – Sanofi-Aventis v Amgen). 

This was also later picked up by the LD Hamburg in Agfa v Gucci (order of 30 April 2025, UPC_CFI_278/2023), where the LD also noted that embodiments which were excluded from the claim scope during the examination proceedings but accidentally were not removed from the description cannot serve as basis for a broad claim interpretation.

Doctrine of Equivalents

Although the UPCA contains no explicit mentioning of the doctrine of equivalents, Art. 2 of the Protocol on the interpretation of Art. 69 EPC empowers the court to consider equivalent infringement. This was noted by The Hague LD in Plant‑e v Arkyne (decision of 22 November 2024, UPC_CFI_239/2023), where infringement under the doctrine of equivalents was affirmed. 

The LD applied a four-step test for assessing equivalence of a modified element as compared to an element of the asserted patent claim: first, it assessed whether the modified element solved essentially the same problem as the patented invention and achieved (essentially) the same function (“technical equivalence”). Second, it asked whether extending the protection of the patent claim to the equivalent was proportionate to fair protection for the patentee (“fair protection”). The third criterion was whether the skilled person understood from the patent that the scope of the invention was broader than what was claimed literally (“reasonable legal certainty for third parties”). And finally, it shall be considered whether the allegedly infringing product would have been novel and inventive over the prior art, in case the contrary has been asserted (so-called “Gillette” or “Formstein” defence).

This four-step test was recently confirmed in another decision of the LD The Hague (Washtower v Wasombouw a.o. order of 11 September 2025, UPC_CFI_479/2025, preliminary injunction). Meanwhile, the LD Mannheim left open whether the four-step test of The Hague applies (DISH v Aylo order of 6 June 2025, UPC_CFI_471/2023, marg. 166 et seq.). Hence, it remains interesting to see how the CoA will assess infringement under the doctrine of equivalents.

Provisional Measures

The UPC can also grant numerous provisional measures, most notably: preliminary injunctions. To grant a preliminary injunction (PI), the court must be convinced that the asserted patent is valid, infringed, and that the case is sufficiently urgent to warrant preliminary measures.

The first ever UPC preliminary injunction was granted even without a hearing (ex parte) and on the same day when the patentee’s request was filed (myStromer v Revolt Zycling, LD Düsseldorf, Order of 22 November 2023, UPC_CFI_177/2023). The court acknowledged that the case was particularly urgent because a delay would have caused irreparable harm, since the attacked embodiments (bicycles) were being presented at a trade fair with high industry relevance. Consequently, the accused infringer would have been able to expand its market presence and establish contact with potential customers. This case shows how swiftly the UPC can act under exceptional circumstances, although granting ex parte is not the norm. 

Regarding validity, the CoA clarified in 10x Genomics v Nanostring (order of 26 February 2024, UPC_CoA_335/2023) that the standard is “more likely than not”, with no presumption of validity from grant. However, factors such as a patent having remained unchallenged for years may support validity, as noted by the LD Düsseldorf in Ortovox v Mammut (UPC_CFI_452/2023, order of 11 December 2023).

Regarding urgency and how long the patentee may take to file a request for provisional measures from the time of learning about infringing activity, the CoA decided that this depends on the details of the individual case (Ortovox v Mammut Sports Group, order of 25 September 2024, UPC_CoA_182/2024), thereby rejecting a formalistic one- or two-month deadline.

Validity

The UPC shall assess validity in (standalone) revocation proceedings, upon a revocation counterclaim brought in response to an infringement claim, or as a prerequisite for provisional measures. The major grounds for invalidity enshrined in the EPC and known from EPO opposition proceedings, namely added subject matter, lack of novelty, and lack of an inventive step, also apply at the UPC. 

Added Subject Matter

At the EPO, added subject matter according to Art. 123(2) / 100(c) EPC is a ground for invalidation discussed in almost every opposition. The test to be applied is whether the skilled person would, using common general knowledge, regard the claimed subject matter as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed (so-called “gold standard” according to EPO decision G1/10). This strict test bars patent claims comprising undisclosed combinations of features, as well as the extraction of features disclosed only in inextricably linked combinations with other features (so-called inadmissible intermediate generalisations).

Initial rulings of the UPC seem to be in line with the EPO’s approach. For instance, the LD The Hague in Abbott v Sibionics (order of 19 June 2024, UPC_CFI_131/2024) applied the concept of an inadmissible intermediate generalisation. Although the CoA overturned the aforementioned decision (Abbott v Sibio, order of 14 February 2025, UPC_CoA_382/2024), it did not reject the legal approach as such but came to a different conclusion, based on a differing view of the implicit disclosure the application at hand.

Inventive Step

With no explicit statutory test for inventiveness – Art. 56 EPC merely refers to what is “not obvious” to the skilled person – the EPO applies the so-called problem-and-solution approach (PSA). But is the UPC following the PSA? In two recent landmark decisions (Edwards v Meril, UPC_CoA_464/2024 et al, and Amgen v Sanofi, UPC_CoA_528/2024 and UPC_CoA_529/2024, both issued on 25 November 2025 by different panels), the Court of Appeal made clear that the PSA is not mandatory and that different approaches may be used under Article 56 EPC, all of which are merely guidelines. However, following up on its decision in re. Nanostring v 10X Genomics (UPC_CoA_335/2023, Order of 26 February 2024), the court applied its own, more holistic framework for the assessment of inventive step, which includes three steps:

First, the “objective problem” must be assessed from the perspective of the skilled person by determining what the invention adds to the state of the art. Second, the court requires the selection of a “realistic starting point” in the prior art, that is, a prior art disclosure which “would have been of interest to a skilled person who, at the relevant date, wishes to solve the objective problem". Finally, the claimed solution is obvious if the skilled person, starting from such realistic starting point, would (and not only could) have arrived at the claimed solution. To justify this conclusion, the skilled person generally needs a pointer (“Anlass” in German, which the court expressly mentions – an apparent reference to the respective requirement under German case law).

Although the terminology used by the Court of Appeal is similar to the EPO’s, the approach is not the same. The EPO’s PSA begins with determining a realistic starting point in the prior art (“closest prior art”). The EPO establishes the “objective technical problem” in a second step, based on the features distinguishing the contested patent claim from said prior art. Meanwhile, the court derived the “objective problem” based on statements made in the patent, but without taking into account any “closest” prior art. The latter is determined only in the court’s second step.

Although the court’s approach differs from the PSA, the court emphasised that, if correctly applied, the methodologies should generally lead to the same substantive outcome.

FRAND Defence

An increasing number of disputes over standard essential patents (SEPs) are appearing before the UPC. However, so far we have seen only two decisions that have involved the FRAND defence.

In Panasonic v Oppo (decision of 22 November 2024, UPC_CFI_210/2023) the LD Mannheim had to deal with a counterclaim for a FRAND licence, which was brought by the implementer in turn to Panasonic’s infringement action. The judges confirmed the UPC is competent to hear said counterclaim pursuant Art. 32(1)(a) UPCA. The LD Mannheim emphasised the importance of the FRAND negotiation scheme established by the CJEU in Huawei v ZTE. That means in order to prevail with a FRAND defence the implementer must be considered a willing licensee based on its overall conduct during the negotiations.

However, in this specific case Oppo was considered an unwilling licensee. The judges therefore dismissed the counterclaim for the FRAND licence. As a consequence, the judges did not have to address the merits of Oppo’s rate-setting request. However they emphasised that such requests must be clearly defined. They also indicated that – at least in this specific case – only a global FRAND rate seemed appropriate. It remains to be seen which stance other divisions will take in this regard.

The second FRAND related decision of the UPC (Huawei v Netgear, LD Munich, decision of 18 December 2024, UPC_CFI_9/2023) did not provide any further guidance in this regard. Netgear had not filed a counterclaim for a FRAND licence but raised the FRAND defence only as an objection. Also, the LD Munich underlined the importance of the CJEU’s FRAND negotiation principles set in Huawei v ZTE. However, also in this case the implementer was considered an unwilling licensee.

So far, we have not seen any decision from the CoA regarding the substantive FRAND assessment. Therefore, it remains to be seen how the CoA will address FRAND matters. Another open question is whether the UPC can also hear standalone FRAND rate-setting actions. The UPC Agreement does not provide complete clarity on this point. As a result, this question will need to be clarified by the court itself. As the UPC still develops its FRAND case law very slowly, it will be crucial to monitor further developments.

Outlook

Since its launch in 2023, the UPC has firmly established itself as an attractive new venue for global patent litigation. With its speed and efficiency, it provides patentees an attractive forum for enforcing both Unitary Patents and traditional European “bundle patents”.

Case numbers are steadily increasing, and the growing body of case law has already now addressed many key items of significant interest. Even though there are still legal questions to be considered by the Court of Appeal, the UPC has already now managed to establish itself as a trusted forum.

Its reshaping of the European litigation landscape can be seen in Germany, where falling case numbers indicate a shift from national court filings to the UPC. Interestingly enough, Germany-based local divisions of the UPC are presently dealing with more than 75% of the UPC infringement cases, and an increasing number of well-known patent judges have transitioned from the German court system to the UPC. This trend will likely continue.