The Unified Patent Court (UPC) celebrated its first anniversary on 1 June 2024. The Court is busy. Pundits are busy. Lawyers are extolling the Court’s virtues and keen to participate. We think it has been a successful first year. But do the statistics back this up? The court has just released the numbers for the year [1]. The table below from the court’s press release shows the statistics for the Court of First Instance (CFI).
The Court of Appeal (COA) has received 63 appeals in relation to procedural matters.
Since the UPC opened its doors, the number of cases has grown each month at a pretty steady 31 or so. Each month this works out to about 10 new infringement cases, about 3 new central revocation actions and about 2 new applications for provisional measures.
The numbers are probably less than the UPC had hoped for. However, some trepidation regarding a new court is to be expected and, when set against a decreasing number of patent cases in Europe over the last few years [2], the Court has arguably done reasonably well.
Also, many European Patents have been opted-out of the jurisdiction of the court, probably to shield them from central revocation actions. This could account for the lowish number of those types of proceedings [3]. But with 24% of requests for validation of European Patent applications being for Unitary Patents, with medical technology patents being the most popular (12.9%), central revocation numbers are likely to increase [4].
The number for applications for preliminary measures, mainly preliminary injunctions, are quite low. This could be due to a lack of familiarity with such measures by applicants. There has also been a strikingly low number of saisie type orders, but again this could be down to unfamiliarity. As the court becomes more familiar to applicants and as case law develops, we expect them to increasingly exploit the full range of measures available to them.
More generally, it is possible that the relatively high costs of proceedings, and their front-loaded nature, has been a disincentive to taking UPC action, especially for SMEs. A financial scheme to support such litigants might be helpful.
Finally, many of Local Divisions (LD) are very quiet. Some have seen no cases. A reasonably strong uptake in the Germany LDs has really helped the numbers. This prevalence of cases in the German LDs probably reflects the natural patent litigation case load across Europe, which is dominated by Germany and the UK. In due course, we expect to see upticks in volume in the Paris and The Hague LDs, and also more cases in the Milan courts.
Finally, the remaining 7 signatory countries to the UPC Agreement have been slow to ratify. But on 11 April 2024 Romania ratified and, once it deposits its instrument of ratification, it will become the 18th contracting member state, perhaps as early as September this year. Disappointingly, Ireland which will host an English language LD in Dublin, will not be ratifying any time soon. The Irish government decided to postpone the constitutionally required referendum on ratification to an unstated future date [5]. However, English has just this month become the dominant language of proceedings (50%) followed by German (44%). Widespread use of English is likely to support international uptake of the Court.
Of course, all the CFI and COA decisions to date have been on procedural applications or applications for preliminary measures. So far, none of the cases filed to date has proceeded as far as judgment on the merits. The first CFI decisions, which are due about 12 to 14 months after the proceedings are issued, are expected over the summer. We await those decisions keenly. Watch out for our UPC Weekly blog for regular updates on UPC decisions and developments.
Mewburn Ellis LLP is a strong supporter of the UPC. Handling actions at the UPC is a key part of our wider Litigation, Post-Grant Proceedings and Oppositions practice. We expect that the UPC will go from strength to strength to become the dominant forum for patent litigation in Europe.
[2] https://www.juve-patent.com/legal-commentary/patent-litigation-firms-must-prepare-for-difficult-times/
[3] Counterclaims for revocation come from 63 individual infringement cases.
[4] https://www.epo.org/en/about-us/statistics/statistics-centre#/unitary-patent
[5] https://enterprise.gov.ie/en/news-and-events/department-news/2024/april/20240416.html#:~:text=The%20Minister%20for%20Enterprise%2C%20Trade,the%20European%20and%20Local%20elections.
