Event recap: EPO Webinar Series “Two Years of the UPC and Counting”

Speakers: Judge Camille Lignières (Presiding Judge, Paris Local Division, UPC) and Judge Elisabetta Papa (Technical Judge, UPC)
By Cristina Cabezas, Student Reporter

The Unified Patent Court (UPC) was established to enhance legal certainty and harmonization of patent law across the EU member states.

Founding Principles: The UPC’s Rules of Procedure are guided by principles ensuring efficiency and fairness:

• Proportionality
• Flexibility
• Fairness and Equity
• Efficiency Goal: To achieve a final oral hearing and decision within approximately one year (12 months) of the action being filed.

Court Structure and Locations: The UPC is an international court within the EU:

• Court of Appeal (CoA): Located in Luxembourg.
• Court of First Instance (CFI): Includes a Central Division (main seat in Paris) and several Local/Regional Divisions.
  • Currently, there are 14 Local Divisions and 1 Regional Division (Stockholm for the Nordic/Baltic region).

Judicial Personnel: The court is staffed by legally and technically qualified judges, often sitting in multinational panels:

• Total Judges (CFI Level): 38 legally qualified judges and 7 judges at the Court of Appeal.
• Technical Judges (TQJs): Approximately 80 technical qualified judges are appointed to specific cases.
• Panel Composition: Panels generally have a majority of legally qualified judges (LQJs). A TQJ is always included in the panel for a revocation action (either direct or as a counterclaim).

Jurisdiction and Competence: The UPC has exclusive competence over infringement and revocation actions involving:

• European Patents with Unitary Effect (covering 18 ratifying EU countries).
• Classic European Patents (subject to a transitional opt-out regime).
• Supplementary Protection Certificates (SPCs) associated with these patents.

Territory and Ratification

• Ratifying Countries (Dark Blue): 18 EU countries have ratified the UPC Agreement (UPCA).
• Signatory Countries (Not Ratified): 6 additional EU countries have signed but not yet ratified.
• Non-Signatory EU Countries: 3 EU countries (Croatia, Poland, Spain) have neither signed nor ratified.

Jurisdiction over U.S. Companies: The UPC frequently has jurisdiction over U.S.-based companies:

• U.S. Companies as Claimants: Can enforce a patent with a single action across the entire territory where the European patent is valid, including non-EU countries that are part of the Munich Convention (e.g., UK, Turkey, Switzerland), if infringement occurred there.
• U.S. Companies as Defendants: Subject to jurisdiction if:
  • The infringement occurs in a UPC contracting member state.
  • They have an “anchor defendant” (e.g., a commercial intermediary) with a domicile/premises in the EU who is participating in the same infringement.
• Data Point: Approximately 50% of cases heard in the Paris Local Division involve U.S. companies.

Types of Actions: The main actions filed before the UPC include:

• Actions for threatened or actual infringement of patents/SPCs.
• Declarations of non-infringement.
• Requests for provisional and protective measures (e.g., preliminary injunctions).
• Revocation actions (direct or as a counterclaim).
• Claims for damages/compensation.

Key Procedural Features

• Timeline: The written procedure for a standard infringement action can be completed in 6 months; an action combining infringement, revocation, and patent amendment takes about 9 months.
• Evidence Gathering: Parties can request an Order to Preserve Evidence and Inspect Premises (a “Saisie Order”), which can be granted ex parte (by surprise) in urgent cases.
• Provisional Measures (PIs): Highly successful, with an average time to decision of 4-5 months.
• Confidentiality: Orders are available to protect confidential information/trade secrets, often involving a Confidentiality Club.
• Mediation/Arbitration: A dedicated center will enter into force in Spring 2026.
• Court Fees:  Are fixed, but an additional value-based fee is calculated according to the claimed damages, subject to a cap.
• Infringement Action: A fixed fee of €11,000 plus the value-based fee.
• Overall Caseload (as of Oct 2025): The UPC has dealt with more than 80 cases since its judicial activity began in June 2023, exceeding initial expectations.

Division Activity

• German Divisions (4 total): Handle the highest number of cases, which was anticipated based on national trends.
• Paris Local Division: Also sees a significant volume of cases.

Language Trend

• English is the increasing common language used in proceedings.
• German: Used in about 40% of infringement actions.
• English: Used in about >50% of infringement actions.

Technical Fields: Cases span a wide range of fields, with the highest concentration in Class A (Human Necessities), including medical devices and pharmaceuticals, followed by other areas like chemistry (Class C) and electricity (Class H).

Role of Disclosure: A landmark Court of Appeal decision confirmed that the description and drawings must always be used as explanatory aids for claim interpretation, not just to resolve ambiguity.

• Principle: Consistent with Article 69 EPC, balancing adequate protection for the patent proprietor with legal certainty for third parties.

Harmonization with EPO: The UPC’s approach was confirmed by the EPO’s Enlarged Board of Appeal in G 1/24 (June 2025), harmonizing the interpretation of claims for both infringement (UPC) and validity/opposition (EPO) contexts.

Patent’s Own Vocabulary: Some UPC first instance decisions have affirmed that the patent is its own dictionary, meaning definitions provided in the patent disclosure, even if inconsistent with general usage, can be adopted for interpreting the claims.

Prosecution History (File Wrapper Estoppel)

• General Approach: In line with European civil law tradition, the UPC generally avoids using the prosecution file to interpret the claims (no “file wrapper estoppel” in the narrow U.S. sense).
• Limited Use: The prosecution file is considered useful for understanding the person skilled in the art’s approach when reading the claims.