How is the Unified Patent Court (UPC) shaping the future of European patent law?

Since its inception on June 1, 2023, the Unified Patent Court (UPC). has rapidly become the central authority for patent litigation in Europe. We are finding that more and more cases that would previously have come before national courts, such as those in Belgium, are now being brought before the UPC. For holders of European patents and companies operating in the European market, it is crucial to closely follow the case law of this new court. Indeed, the UPC's decisions set important precedents that directly affect innovation protection strategies and approaches to infringement.

As a specialized law firm in the intellectual property rights, we continuously analyze the latest developments in the patent law. Below we summarize the main lines that the UPC has put out so far.

The validity of a patent under the microscope

A patent can be attacked before the UPC on several grounds. Case law shows that the court is developing a harmonized approach, often in line with the established practice of the European Patent Office (EPO), but with its own accents.

Priority and added matter: the "gold standard"

In assessing whether a claim to an older priority right is valid, the UPC applies the so-called "gold standard" test. This criterion, also applied by the EPO, means that the subject matter expert must be able to directly and unambiguously infer the claimed invention from the earlier patent application as a whole. We saw this strict standard confirmed in cases such as Sanofi/Amgen for the Central Division (CD) Munich and Plant-e/Arkyne for the Local Division (LD) The Hague.

This same "gold standard" is applied by the UPC in assessing added matter. In the case Abbott/Sibio the Court of Appeal (CoA) held that the omission of a specific technical feature does not automatically result in added subject matter. If the skilled person understands that this feature is not essential to achieving the benefits of the invention, its omission is permissible.

Novelty: a rigorous approach

In assessing novelty, the UPC takes a very strict line. The Local Division (LD) Düsseldorf considered in Kaldewei/Bette that a technical doctrine is new if it differs from the prior art in at least one feature. What belongs to the prior art is only that which can be directly and unambiguously deduced from a single publication.

Inventiveness: a pragmatic middle ground

For the assessment of inventive step, the UPC seems to be pursuing its own course, somewhere between the strict "problem-solution approach" (PSA) of the EPO and the more flexible German approach.

In the landmark case 10x Genomics/NanoString the Court of Appeals (CoA) held that courts must identify a relevant starting point in the prior art and then determine whether there was an "inducement" for the person skilled in the art to consider the claimed invention with a reasonable expectation of success. Although the Central Division (CD) Paris in Meril/Edwards noted that the PSA is not mandatory , it is often concluded that its application would lead to the same result.

After-effectiveness: the presumption of validity

A granted patent is deemed to be sufficiently after-workable. The party challenging the validity must show that there is "substantial doubt" about the post-validity, the Court of Appeals (CoA) confirmed in Ortovox/Mammut. The test is whether the person skilled in the art can perform the invention over the full breadth of the claims without unreasonable effort ("undue burden").

Infringement: the limits of protection

In addition to the validity of the patent, the UPC is obviously looking into the question of infringement.

Explanation of patent claims

The scope of protection of a patent is determined by the claims, in accordance with Article 69 of the European patent treaty (EPC). The Court of Appeals (CoA) held in Nanostring/10x Genomics confirmed that the description and drawings should always be consulted to explain the conclusions. An interesting issue is the role of the grant file. Recent case law from the Court of Appeals (CoA) in Alexion/Samsung and Alexion/Amgen suggests that arguments made during the grant process may play a role as an indication of how the skilled person understood the invention.

Infringement by equivalence

What if a product is not literally covered by the wording of the patent claims? The Local Division (LD) Hague in Plant-e/Arkyne formulated for the first time a detailed test for infringement by equivalence. This test, which has since been applied by the Local Division (LD) Brussels in X/OrthoApnea , includes four questions on technical equivalence, equitable protection, legal certainty and the product's own novelty and inventiveness.

The process for the UPC: strategic concerns

The UPC's procedural rules have a major impact on litigation strategy.

The "long-arm" power of the UPC

One of the most significant developments is the confirmation of the UPC's broad international jurisdiction. Following the judgment BSH/Electrolux of the Court of Justice of the EU of January 25, 2025 (C-339/22), did the Local Division (LD) Paris in Mul-T-lock/IMC Créations held that the UPC has jurisdiction to adjudicate infringement of national portions of a European patent in countries that are not are members of the UPC Convention (such as Spain and the United Kingdom). This "long-arm jurisdiction" makes the UPC an exceptionally powerful tool for centralized enforcement across Europe.

Opt-out and its withdrawal

Holders of classic European patents can use an "opt-out" to exclude the UPC's jurisdiction. The Court of Appeals (CoA) clarified in Neo Wireless/Toyota That an opt-out is only valid if it is by all holders of the national portions of the patent has been filed. In AIM/Supponor this same Court held that an older, ongoing domestic proceeding, which had been commenced before the enactment of the UPC, does not preclude a subsequent withdrawal of the opt-out.

Provisional measures, evidence and confidentiality

• Urgent interest: To obtain injunctive relief, a plaintiff should not wait an unreasonable amount of time. Case law, as in Amycel/X for Local Division (LD) The Hague, does show understanding that time is needed to carefully gather evidence.
• Evidence (Disclosure).: The UPC may order evidence preservation measures, which, according to the Court of Appeals (CoA) in Progress/AWM Schnell also implies a request for inspection. Parties may also be required to provide itemized evidence under their control, provided the requesting party has already provided reasonably available evidence to support its claims.
• Confidentiality: Proceedings before the UPC have a strict regime for protecting confidential information. The court can set up a "confidentiality club," restricting access to sensitive information to specific individuals. While the main rule is that each party must be represented by at least one natural person , the Local Division (LD) Hague ruled in Plant-e/Arkyne That access can be limited to attorneys' eyes only ("attorneys' eyes only").

Collateral and SEP/FRAND disputes.

• Security for litigation costs: A defendant may ask the court to order the plaintiff to provide security for costs of litigation. The requesting party must show that there is a well-founded fear that any order for costs will be impossible or very difficult to enforce. The financial strength of any parent company of the plaintiff is irrelevant in this regard.
• Standard Essential Patents (SEPs).: In matters concerning SEPs, such as Panasonic/OPPO and Huawei/Netgear, the UPC applies the criteria from the Huawei/ZTE-judgment of the Court of Justice toe. A party seeking a license under FRAND ("Fair, Reasonable and Non-Discriminatory") terms must act as a "willing licensee" and proactively provide necessary information, such as its own sales data, to facilitate negotiations.

Conclusion: what does this mean for you?

The contours of a uniform and predictable European patent law are becoming increasingly clear. The UPC is proving to be an efficient and knowledgeable court that is creating a harmonized framework by adhering to the tried and tested methods of the EPO while integrating elements from successful national legal practices.

The strategic choices - litigating before the UPC or not, requesting an opt-out, the timing of proceedings - have far-reaching consequences. The broad jurisdiction and speed of the UPC provide unprecedented opportunities for patent holders, but also carry risks, such as central invalidation of a patent.