The UPC report after its first 18 months: faster decisions but still not covering the whole European Union. The Milan Division ranks second for number of revocations, preceded only by Paris and followed by Munich.
The Unified Patent Court (UPC), is the new court set up on 1 June 2023 as a result of a package of European and international laws that simultaneously created a new patent title, the European Patent with Unitary Effect (better known as the Unitary Patent) which represents a single patent title for the currently 18 Member States and is a successor to the so-called 'traditional' European Patent, which instead corresponds to a bundle of national patents in the validating states.
The Court of First Instance of the UPC is composed of local/regional and central divisions that have jurisdiction for various actions involving unitary patents and 'traditional' European patents, in particular for infringement and revocation actions, allowing such actions to have effect in all of the Member States. The Court of Appeal of the UPC is located in Luxembourg, as is the Court Registrar.
The pool of judges is multinational and includes both 'legal' and 'technical' judges, given the subject matter it has to deal with.
The report
The first annual report was published in February 2025. As at 31 December 2024, a total of 633 actions had been filed with the Court of First Instance, including 58 actions for revocation, 239 counterclaims for infringement and 140 counterclaims for revocation. The growth in the number of actions over time has been fairly linear from the initial 14 infringement actions and 4 revocation actions.
On paper, the UPC promised homogeneous decisions and, above all, quick processing times as well as infringement/revocation actions in the Court of First Instance that would be completed within approximately one year. The statistics in the report substantially confirm the achievement of this goal. In fact, with reference to the main actions that can be brought before the UPC, the average time to close an action as of 1 June 2023 is as follows:
- 405.42 days for infringement actions
- 383.43 days for revocation actions
- 301 days for counterclaims for revocation
As could be expected, most of the infringement actions and related counterclaims for revocation were filed with the local German Divisions, in particular the Munich and Dusseldorf Divisions, of the Court of First Instance. The figures for Italy with the Milan Local Division show a clear and predictable gap from the German Local Divisions but are in line with the actions presented at the Dutch Local Division and are above the other Local/Regional Divisions. In fact, in 2024, among the actions filed with the Milan local Division, there were 5 requests for provisional measures and 10 infringement actions with 4 counterclaims for revocation.
It should not be forgotten that since June 2024, one of the three central divisions of the UPC is also operational in Milan, since they are spread between Paris, Munich and Milan. The Central Divisions are primarily concerned with revocation actions although other types of actions are also possible. Milan in this case ranks second, after Paris, with 7 actions for revocation, one 'non-infringement' action and one counterclaim for infringement.
Germany's top position is also reflected in the nationality of both actors and defendants. In second place were actors/defendants of US nationality. Once again, Italy has significantly lower numbers than the top ranking places but is in line with the main reference states (e.g. France and the Netherlands).
Interestingly, infringement actions were
associated with counterclaims for revocation in 71% of the
cases. One limitation to the use of such a defence
(challenging the validity of the title in response to an
infringement action) might lie in the costs of the
UPC. These costs are in fact substantially in line with
those of an action in a German national court but
significantly higher than those in other national
courts, like for example the Italian courts.
There is a fixed fee of 20,000 € for a
revocation action and a fixed fee of
11,000 € for an infringement
action, plus a variable amount based on the value of the
case.
There are, however, reductions for small and micro
businesses, which in 2024 were involved in a total of 16
actions including infringements, revocations and counterclaims.
An initially much-criticised aspect of the UPC concerned the language of procedure. Many local divisions indicate English as an additional language of procedure to the local language, and in 2024 English, along with German, proved to be the most widely used language, in both infringement and revocation actions. This aspect therefore remains rather critical because it is difficult to balance the two needs: that of the defendants to be able to use a language that allows them an effective defence and that of the judges to be able to use a language that allows them an equally effective evaluation and judgement.
Turning our attention to unitary patents, the website of the European Patent Office, which manages them, shows a steady growth in applications, reaching over 50,000 by the end of February 2025. These account for 21.9% of European patents granted, and mainly concern patents in the fields of medical technology, measurement and transport. Thus, for 'new' grants, about 1 in 5 European patents is unitary.
Still most granted European patents follow the path of traditional validations, thus resulting not in a unitary title but in a bundle of national patents. These are also subject to the jurisdiction of the UPC, although for a transitional period it is possible to remove them from that jurisdiction by filing a so-called 'opt-out' request with the UPC registry.
The annual report of the UPC indicates that as of 31 December 2024, 549,977 'opt-out' requests had been submitted, and the majority of these were submitted in the first months of the UPC's existence. This is a sign that companies probably want to evaluate the work of this new court before 'entrusting' it with the previous and, to some extent, current portfolio of their European patent titles.
As reported on the UPC website, Klaus Grabinski (President of the Court of Appeal) stated that "The first and a half year of the Unified Patent Court has been marked by significant progress in establishing a strong and efficient patent litigation system across the Member States. A growing number of actions have helped to start building a consistent body of case law. Looking ahead, judges and clerks will remain committed to make the UPC an integral part of the European patent system."
Obviously it has been a year and a half of 'running in' for the court and of 'familiarisation' for companies. The numbers did indeed meet expectations to a large extent, especially with regard to processing times. On the homogeneity and reliability of decisions, it is a little early to express an opinion. The costs were known from the beginning and remain a stumbling block especially for small and medium-sized businesses. Finally, an obstacle which still remains and which makes the logic of this new system difficult to understand, especially for non-Europeans: the UPC and the unitary patent certainly cover a large number of states (currently 18) but do not cover the entire European Union and this situation is unlikely to change in the short term.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
