UPC trends to watch out for

The long-awaited establishment of the Unified Patent Court (UPC) stands as a pivotal moment for patent litigation across Europe. Since becoming a reality last year, the anticipation surrounding its potential impact on businesses, innovation, and legal strategies has evolved into analysis and advice around how best to navigate the new system.

In this article, we explore predictions around the UPC including implications it may have on patent enforcement, legal proceedings, and the overall landscape of intellectual property rights.

Impact of the Court of Appeal

At this early stage in the UPC’s evolution, early first instance decisions are still under appeal but the role of the Court of Appeal will undoubtedly be determinative for setting the tone across all local and regional divisions of the UPC as to where the bar should be set on a multiplicity of issues.

Even if the early decisions are not confirmed by the Court of Appeal, we expect that the toolkit at the disposal of the UPC judges will invariably prove popular with patentees, not least so as some extremely popular procedures (eg the seizure of evidence available nationally in France and Belgium) have become more widely available through the UPC.

Expect divergence

Divergence between national and UPC practice is inevitable, given the smorgasbord of sources of law that were distilled into the UPCA and Rules of Procedure and it is to be expected that it will take many years for practice on even the most widely cited provisions to crystallise and be fully settled. Predicting and tracking these developments will not only require detailed and thorough legal assessment but also tenacity. Dedicated users of the UPC system—and followers and predictors of UPC trends—will benefit their clients by being able to provide sound advice not only on UPC tactics but also on choice of litigation forum, be that regarding the most advantageous UPC local division or the alternative use of national courts.

Given the number of national jurisdictions that inspired and influenced the UPCA and the Rules of Procedure, it is to be expected that some of the developing practices of the UPC will inevitably deviate from the national practices of many of the UPC member states. An early example of this is the standard for the required likelihood of validity of a patent during preliminary injunction proceedings, with the standard applied by the UPC seen as being somewhat more permissive than the standard applied by, for example, the German national courts.

Ireland’s recent announcement to hold their referendum on the ratification of the UPC agreement in June 2024 may add an exciting further ingredient to the mix, with the Irish UPC local division, once established, being the only local division steeped in a common law history. One may suspect that they may catalyse the more prolific use of those UPC provisions originating in common law jurisdiction. That said, little evidence of local legal traditions seeping into UPC orders and decision can be found to date.

English overtaking German?

Perhaps unsurprisingly, when the UPC opened its doors, German was the language most used as the language of proceedings—many of the early cases were filed there. With the encouragement of UPC judges from inside and outside Germany, the original dominance of German has eroded significantly and we expect that this trend will continue to the point where English will soon take over as the most used language.

This would then not only reflect the use of the English language at the European Patent Office (EPO)—indeed, the vast majority of European patent applications are filed in English—but will also open access to a wider pool of judges that are available for hearing, both at first instance and, maybe more importantly, on appeal. This is one of the main reasons for judicial encouragement to file in English.

Speed of decisions

It has been reassuring to see the speed at which the UPC has issued orders and decisions (it is, for example, hard to argue that the issue of an ex-parte PI decision in a single day is not user friendly!) but, as the popularity and workload of the court increases resources are likely to be stretched, making it desirable for all available judges to be utilised.

As mentioned above, use of the English language supports this. This is not least so for urgent applications for provisional measures—for which the UPC has created a fast track procedure that immediately channels the request to a standing judge.

Encouragingly, we have also seen that UPC judges appear to be prepared to stay proceedings and await EPO opposition decisions, if they become available within a reasonable time frame.

The EPO in turn can accelerate opposition proceedings if parallel UPC proceedings are pending. How this will work in practice is not yet clear, given the sizeable EPO opposition backlog, remains to be seen. However, the EPO’s focus on customer service suggests that a prioritisation of oppositions rendered urgent by UPC proceedings is well within the realms of possibility.

Increasing sphere of influence

The EPO opposition divisions have for a long time taken national case law into account and we would expect this to include UPC case law in future and it would not come as a surprise if the weight given to it increases with increasing UPC case load. The keen adoption of the Unitary Patent by patent proprietors and the start of withdrawals of (maybe precautionary) previously filed opt-out requests certainly increases the size of the pool of patents under the UPC’s jurisdiction and we would expect the upward trend of new disputes being brought at the UPC to continue.

If the UPC manages to maintain the current pace of producing orders and decisions even at higher volumes, then it will undoubtedly provide an attractive forum for disputes that are fought on a multi-national basis much wider than the UPC territory alone.

Given the tight schedule for filing pleadings and replies alongside early UPC decisions, it is to be expected that if the decisions are well reasoned and of a high standard, those UPC decisions may influence parallel proceedings outside of Europe.

Popular venue for tech

Moreover, as evidenced by the current UPC case load, it is to be expected that the UPC will be particularly busy in areas of technology in which the national case law of UPC member states is not harmonised and where early movers try and shape UPC case law to their advantage.

Finally, will the UPC rise as the preferred forum over courts already handling worldwide licenses in the SEP and FRAND sector? Only time will tell.

Thomas Prock and Mike Gilbert are partners at Marks & Clerk.