The First Year of the UPC / UP
Written By James Sharley Part-Qualified Patent Attorney
The Unified Patent Court (UPC) has now been operational for one year. Its launch alongside the new Unitary Patent (UP) system marked a significant change to the European patent landscape, offering a new approach to patent protection and litigation across participating EU member states. Several trends and characteristics have become evident during the first year.
Launch and Initial Uptake
Following ratification from the required EU member states, the UPC officially began its operations on 1st June 2023, with UPs taking effect at the same time. A cautionary "opt-out by default" approach was adopted by many. However, 17.5% of European patents granted in 2023 were still converted into UPs. UP uptake now appears to be on the rise, with the rate for cases granted in 2024 so far standing at 24.0% [1]. This increase would seem to reflect heightened confidence in the UPC, with certainty around particular issues beginning to emerge.
The UPC's Court of First Instance had reportedly received a total of 341 cases as of 30th April 2024, with 123 infringement actions and 32 revocation actions registered in the same period [2]. The lower uptake in revocation actions is not surprising, with EPO opposition offering clear benefits (fees, predictability of outcomes and effectiveness of decisions across all EPC member states, for example).
In terms of technical areas, interest has been widespread; however, UPC actions relating to patents in IPC classes H (electricity) and A (human necessities) appear to have been most prominent. Wide interest in the UP has also been observed, although some industries appear to be making more use of it than others, with medical technology currently standing out as a key area (Table 1) [1][3].
Table 1 – Total requests for unitary effect vs. 2023 EP filings
|
IPC Field |
Percentage of Total Requests for Unitary Effect (Top 10) |
Percentage of European patent applications* filed with the EPO in 2023 |
|
Medical Technology |
12.1% |
8.0% |
|
Civil Engineering |
5.7% |
2.3% |
|
Transport |
5.3% |
4.7% |
|
Measurement |
5.3% |
4.8% |
|
Other Special Machines |
5.2% |
3.3% |
|
Digital Communication |
5.2% |
8.9% |
|
Electrical Machinery, Apparatus, Energy |
4.8% |
7.7% |
|
Computer Technology |
4.6% |
7.9% |
|
Handling |
4.0% |
2.5% |
|
Pharmaceuticals |
3.7% |
4.7% |
*includes direct European applications and international (PCT) applications that entered the European phase during the reporting period.
The territorial reach of the UP is an attractive prospect for patent proprietors, offering potential post-grant cost savings and procedural simplification, however, at the risk of central revocation. The UPC also affords litigants the opportunity to obtain a single decision effective across all UPC member states, offering significant potential cost and time savings over multiple national court level cases. The 17 member states currently part of the UP/UPC system are Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden, with more expected to join in the coming years.
Procedural and Substantive Insights
In its first year, the UPC has proven effective at serving the needs of both small and large organisations. It has successfully handled cases involving both UPs and European patents, establishing itself as a venue for new and existing disputes. Consideration for the interests of the parties involved has been demonstrated in Plant-e Knowledge BV vs Arkyne Technologies SL [4], for instance, where a change in the language of proceedings was accommodated for. Whereas in myStromer AG vs Revolt Zycling AG [5], an ex parte preliminary injunction was issued in just one day. Furthermore, while the EPO offers full transparency in opposition proceedings, the UPC rejected requests for file inspection in Sanofi vs Amgen due to lack of a "concrete and verifiable legitimate reason" [6]. Overall, the UPC appears to be meeting expectations regarding procedural efficiency, issuing decisions quickly. However, there remains a need for further clarity around certain procedural issues, such as bifurcation at the UPC.
The UPC's electronic case management system has presented some challenges, especially during the "sunrise period," with approximately 465,000 patents and patent applications being opted out. The transition period, allowing patentees to opt out of the UPC, will continue for at least another six years, and it is anticipated that the UP will continue to increase in popularity throughout this period as confidence in the new system builds.
The UPC Court of Appeal made its first substantive decision earlier this year, overturning the Munich Local Division's preliminary injunction against NanoString in 10x Genomics vs Nanostring [7]. Similar principles to those well established in the EPC were applied, with inventive step and claim interpretation differences being key. Opposition proceedings for the same patent (EP4108782) are ongoing at the EPO, and it will be interesting to see how the UPC's approach compares with the eventual outcome at the EPO.
Looking Ahead
The first year of the UPC has been a period of significant activity. Many organisations, large and small, appear to be making use of both the UPC and UP. As the UPC continues to evolve, the extent of divergence with the EPO on key matters and the degree to which EPO case law influences UPC decisions will become clearer. Any perceived bias or inconsistency could undermine confidence in the new system, making this an area of close scrutiny in the coming years. Moving forward, the court's ability to handle an increasing caseload and maintain consistency in its rulings will be critical to ensure the UP/UPC fulfils its potential as a cornerstone of the European patent system.
If you have any questions or would like to speak to our Patents department, please contact us at mail@stratagemipm.co.uk.
References
[1] https://www.epo.org/en/about-us/statistics/statistics-centre#/unitary-patent
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