The Unified Patent Court (UPC) at 21 months

The UPC is nearly two years old and the forum has been enthusiastically adopted by many. Here we review the busyness of the UPC and think about what the next year might look like. 

What actions have been filed at the UPC? 

To the end of February 2025, there have been 752 CFI actions started – mainly in English.  As expected, infringement actions lead the way.  But now that the UPC is nearly 2 years old, applications for cost decisions are adding to the workload of the UPC.  Now that English is an available language before all divisions, English is leading the language league.

Where?  

Most UPC business is before the Local Divisions (LDs), and most of that is before the German LDs. The German LDs are very busy and this may be affecting the speed of issuing decisions (see more below). Perhaps claimants/applicants should start considering other divisions.

What decisions have issued? 70 decisions on the merits/final orders

There have been 752 CFI actions filed overall – including just under 400 actions for infringement/ revocation/ provisional measures/ preserving evidence.  But how many decisions on the merits/final orders has the UPC issued?

To the end of February 2025, the UPC has issued 70 decisions on the merits/final orders, including 37 in relation to infringement or revocation actions, 24 in relation to provisional measures and 8 in relation to preserving evidence. 

Let's look at these in turn:

Decisions on the merits in relation to infringement or revocation actions

For the 37 decisions on the merits in relation to infringement or revocation actions, most oral hearings took place within the target of a year of filing a claim: And the odds of the patentee winning are coming in just over 50%: In each case where infringement (and validity) has been found, an injunction has been granted.  

Of the 37 decisions on the merits in relation to infringement or revocation actions, all have been appealed (apart from those settled). 

Final orders issued for provisional measures   

There have been 25 final orders issued for provisional measures. These have been issued within a few months (after a full consideration of the likelihood of validity and infringement).  

In each case, where validity and infringement has been found, a provisional injunction has been granted.

As can be seen from the graph above, the Local Divisions in Düsseldorf and Munich have issued the most final orders, and take around 90–130 days to issue the final order.  

The outcome of an application for provisional measures appears to be coming out slightly in the patentee's favour, but some LDs more than others might be more likely to grant provisional measures:

Final orders issued for preserving evidence

There have been eight final orders issued for preserving evidence. The UPC generally issued the order in a few days.

What next? 

The Court of First Instance (CFI) (the Local, Central And Regional Divisions) 

As mentioned above, there have been 752 CFI actions filed overall – including just under 400 actions for infringement/ revocation/ provisional measures/ preserving evidence.  However, to the end of February 2025, the UPC has issued only 70 decisions on the merits/final orders.  That leaves a lot of actions without the CFI having yet issued a final decision:

For instance, considering infringement actions alone, the UPC appears to have issued decisions in respect of only around 12% of CFI actions.  Around 29% of infringement actions are over one year old, yet they do not have a decision.  

The existing caseload of the divisions of the CFI appears to be a heavy one and it's difficult to see how the UPC can continue to meet that one-year target.  Perhaps it's time to consider filing actions before those divisions with a lower case load. 

Appeals 

There are a lot of appeals.  Nearly every decision on the merits in relation to infringement has been appealed (apart from those settled). As have many other final orders or interim ones.  So the Court of Appeal is also going to be incredibly busy.

A panel of the Court of Appeal must involve a multinational composition of three legally qualified judges.  There are only seven legally qualified judges on the Court of Appeal – two German, two Dutch, one Italian, one French and one Swedish. Panels will have to be established from this limited number of judges for all the appeals that are before the Court of Appeal. Even if some are initially referred back to the CFI for review. 

How fast will the Court of Appeal be able to manage this workload? Is the speed of the Court of Appeal and the CFI about to show a marked deceleration? 

In conclusion 

The UPC continues to show appeal to claimants, with the prospect of injunctions and revocations having an effect over a broad territory.  However, this appeal might result in the UPC being unable to continue its speedy resolution of cases. Will 2025 bring a deceleration to the speed of the Court of Appeal and the CFI of the UPC? We wait to see.