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2025 Ⓒ Boston Intellectual Property Law Association
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The Unitary Patent and Unified Patent Court: A New Era for European Patent Litigation

By Michael Pears and Oliver Laing, Potter Clarkson
The introduction of the Unitary Patent (UP) and the Unified Patent Court (UPC) marks a significant milestone in the landscape of European patent law. Since its inception on 1 June 2023, the UPC has provided a centralised forum for enforcing and challenging Unitary Patents and opted-in European Patents across Europe. This article delves into the key aspects of the UPC, its impact on patent litigation, and strategic considerations for both claimants and defendants, with a focus on what this means for US-based companies.
Overview of the Unitary Patent System
The UPC was established to streamline patent litigation in Europe, offering a single, centralised court system that covers most of the European Union. As of 1 January 2025, over 635 cases have been filed, including 55 revocation actions, 239 infringement actions, 251 counterclaims for revocation, and 62 applications for provisional measures. The high volume of cases and requests for unitary effect demonstrates a strong confidence in the new system. The Unitary Patent system allows for a single patent to be granted protection across multiple European countries, reducing the complexity and cost associated with maintaining and enforcing patents in multiple jurisdictions. This system is particularly beneficial for US-based companies operating in Europe, as it simplifies the process of securing and defending patent rights across the continent.
Adoption and Performance
The UPC has seen good adoption across various industries, with many of the world's leading companies participating. Notably, most of the top 10 claimants are US-based, and one-third of all infringement cases had a US claimant. This high level of participation from US companies underscores the importance of the UPC in the global patent landscape. The UPC judges have shown their technical and legal expertise, maintaining a pro-justice stance rather than being pro- or anti-patentee. This balanced approach ensures that both patent holders and challengers receive fair treatment under the new system. The number of UPC judges has recently increased to handle the rising caseloads, reflecting the growing demand for the court's services.
Key Advantages of the UPC
  1. Cost-Effectiveness: While more costly than European Patent Office (EPO) opposition proceedings, UPC litigation is significantly more cost-effective than litigation in multiple European territories (or even, in some cases, than pursuing a single revocation action in one European territory). One action is effective across all UPC member states, with streamlined procedures and limited discovery/disclosure; and there is also the opportunity for cost-recovery (unlike EPO proceedings). This cost efficiency is particularly advantageous for US companies looking to enforce their patents across Europe without incurring prohibitive legal expenses.
  1. Speed: The UPC aims to resolve cases within 12-15 months, with oral hearings completed in one day and reasoned judgments issued within weeks, and is therefore much quicker than national litigation. The EPO has also committed to accelerating opposition proceedings that run parallel to UPC revocation actions. This expedited process allows companies to resolve patent disputes quickly, minimising the disruption to their business operations.
  1. Flexibility: UPC actions can be commenced at any time during the life of the patent, and even after patent expiry. Under the present provisions, Patentees can 'opt-in' their patents to the UPC when ready to enforce, but keep them ‘opted out’ before that thereby minimising the risk of revocation across Europe. The flexibility in forum selection allows claimants to choose divisions based on technical strength, pro-claimant tendencies, or better track records. This strategic flexibility is invaluable for US companies navigating the European patent landscape.
  1. Improved Remedies: The UPC is willing to grant wide-ranging interim and permanent remedies, including ex-parte injunctions. Saisie orders (which, if granted, effectively permit a patentee to preserve or inspect evidence at an alleged infringer’s premises) are powerful pre-action tools for evidencing infringement, and are particularly useful for process patents, and the UPC has shown a willingness to grant them. Penalty payments are available for delays in compliance with injunctions. Furthermore, damages can be obtained for infringement across all 18 UPC states in a single action (an economic area similar in size to the US market). These robust enforcement mechanisms provide strong protection for patent holders, ensuring that their rights are upheld.
Strategic Considerations for Claimants
The UPC allows claimants to put significant pressure on defendants, who face tight deadlines and an intensive written procedure. The court has taken a strict approach to granting extensions, only allowing them in exceptional circumstances, and a general reluctance to stay proceedings in view of EPO opposition proceedings. This combination of factors can lead to early settlements, as seen in several high-profile cases. For US companies, the ability to apply pressure through the UPC can be a powerful tool in patent enforcement. By leveraging the court's streamlined procedures and strict deadlines, claimants can create a sense of urgency that encourages defendants to settle disputes quickly. This can be particularly beneficial in industries where time is of the essence, such as digital and electronic technology, and pharmaceuticals.
Strategic Considerations for Defendants
  1. Opt-Outs: Unless intended for strategic enforcement within the unitary system (i.e. as a deterrent), Defendants should ensure their classical European Patents are validly ‘opted-out’ of the jurisdiction of the UPC to avoid centralised revocation.
  1. Protecting Letters: Preparing and filing protective letters as a pre-emptive measure against potential allegations of infringement at the UPC is crucial. These letters set out defences to potential allegations (revocation attacks and/or non-infringement arguments) and are reviewed by the court if an application for provisional measures is filed by a patentee/claimant. Importantly, the letters are not made public and so the patentee will not be aware of the existence of a protective letter unless and until they file an application for provisional measures, such as a preliminary injunction. For US companies, this proactive approach can help mitigate the risk of unexpected legal challenges.
  1. Freedom to Operate (FTO) and Competitor Analysis: Conducting FTO and competitor analyses (including for opted-out European Patents (EPs), which can be opted in and enforced in the UPC within a matter of days), is essential. Defendants should be prepared to work at speed to meet deadlines and file responsive evidence. This thorough preparation can help US companies avoid costly litigation and protect their market position.
Offensive Strategies: Revocations and Challenges
  1. Revocation Claims: If a patent of concern is opted in, consider bringing a revocation claim. Being the claimant in proceedings can maximise prospects of success. Conduct expert searches and prepare expert evidence in advance to create procedural and pleadings pressure, potentially securing settlement ahead of trial. For US companies, this offensive strategy can be an effective way to challenge competitors' patents and clear the path for their own innovations.
  1. Challenging Opt-Outs: Consider challenging the ‘opt-out’ of European patents that are not presently under the jurisdiction of the UPC, and then seeking their central revocation before the UPC. Even ostensibly opted-out patents can be challenged if the opt-out application was not lodged by or on behalf of all proprietors of all national parts of the patent. Co-owned patents or those with a complex chain of title may be vulnerable to such an attack. This strategy can help US companies neutralise potential threats and strengthen their patent portfolios.
Integrating EPO Opposition and UPC Strategy
One of the most critical aspects of navigating the new European patent landscape is the integration of EPO opposition and UPC strategy. These two mechanisms should not be viewed in isolation but rather as complementary tools in a comprehensive patent strategy.
  1. EPO Opposition: The EPO opposition process allows third parties to challenge the validity of a European patent within nine months of its grant. This procedure can be a cost-effective way to clear the path of potentially problematic patents before they become entrenched.
  1. UPC Strategy: The UPC provides a forum for both enforcing and challenging patents across multiple jurisdictions. By considering EPO opposition and UPC strategy together, companies can create a cohesive approach that maximises their chances of success.

For US companies, this integrated strategy is particularly important. By coordinating EPO opposition proceedings with UPC litigation, companies can ensure that they are fully prepared to defend their patents or challenge competitors' patents on multiple fronts. This dual approach can provide a significant strategic advantage, allowing companies to address potential threats early and comprehensively.
Seizing Jurisdiction
The lis pendens rule applies where there are co-pending cases before the UPC and national courts of a Contracting Member State during the UPC transitional period, or national courts of an EU Member State which is not a UPC Contracting Member State (e.g., Spain). The court "first seized" must accept jurisdiction, and the second court must stay proceedings, if the cases concern the same cause of action between the same parties. For related actions (similar cause of action and/or related parties), the second court may choose to stay proceedings. This jurisdictional framework aims to ensure that patent disputes are handled efficiently and consistently, reducing the risk of conflicting decisions. For US companies, understanding the nuances of this framework is key for effectively managing cross-border patent litigation. Recent jurisdiction cases:
  1. DexCom v. Abbott: This case confirmed that where parallel cases are "related," the court seized second (here, the UPC) has discretion to decline jurisdiction in favour of the court first seized (German national court). However, the UPC maintained jurisdiction on the validity of the entire EP patent, including the German part. The UPC concluded that it was not in the interests of proper administration of justice to stay UPC proceedings given that the German national court would not be able to make its decision as quickly as the UPC would.
  1. Mala v. Nokia: The UPC Court of Appeal made clear that the UPC can assert jurisdiction even when there were parallel national proceedings on the same patent brought before the UPC's transitional period. However, it ruled that, in this case, the UPC revocation proceedings should be stayed pending determination of the German action. It took into account that the German action was in its final stages, so the period of stay would be relatively short. The court also considered it cost effective to avoid progression of the UPC proceedings in case the parties decided to settle the claim following the national revocation proceedings. Another factor in favour of the stay was that the actions were almost identical.
These cases highlight the UPC's commitment to ensuring that patent disputes are resolved in a timely and efficient manner; it is willing to stay proceedings before it (in the right cases) but without undermining its role as a central authority for patent litigation in Europe.
Conclusion
The UPC represents a significant shift in European patent litigation, offering a centralised, efficient, and flexible forum for resolving patent disputes. Both claimants and defendants must navigate this new landscape strategically, leveraging the advantages of the UPC while being mindful of the potential challenges. As the system continues to evolve and gain traction, it will be crucial for all stakeholders to stay informed and adapt their strategies accordingly. For US companies, the UPC offers a valuable opportunity to streamline their patent enforcement and defence efforts in Europe. By understanding the key aspects of the UPC and developing tailored strategies, US companies can effectively protect their intellectual property rights and maintain a competitive edge in the global market.
Michael Pears Partner – Patent Attorney, Potter Clarkson Oliver Laing Partner – IP Solicitor, Potter Clarkson Potter Clarkson is a leading intellectual property firm renowned for its expertise in European Patent Office (EPO) opposition and Unified Patent Court (UPC) strategy. The team has successfully represented numerous clients in high-stakes UPC cases, leveraging a deep understanding of patent law to safeguard and challenge intellectual property rights across Europe.