‘A successful year’: UPC reveals key case figures ahead of first anniversary
Statistics show number of infringement actions filed, developments, and insights into the Court of Appeal's activity | Court seen as “exceeding expectations” | Trends in offensive and defensive strategies at the court explored.
As the Unified Patent Court (UPC) marks its first anniversary tomorrow, June 1, latest statistics released by the court show its performance over the past year.
Since its official start in June 2023, the UPC has received a total of 373 cases.
These cases include various types of patent disputes, including infringement actions and counterclaims, provisional measures, and revocation actions.
Popular in ‘enforcement context’
Sebastian Moore, partner and head of IP UK at Herbert Smith Freehills, said: "The UPC has had a successful first year, proving to be particularly popular in the enforcement context.”
“This is not surprising, given the possibility of obtaining relief in 17 contracting countries,” he continued.
Antje Brambrink, partner at Finnegan said: “Since its launch one year ago, the UPC has attracted many litigants across industries. The consistently increasing caseload shows the (still) growing attractiveness of this new venue.”
According to Moore, the UPC has “efficiently” handled interlocutory applications, and several Court of Appeal decisions have clarified key issues—including the threshold for obtaining preliminary injunctions and the conditions under which non-litigants can access documents filed in proceedings.
“The numbers show the great success the new court has achieved within the first year. It will be interesting to see further developments in the future, in particular, whether the focus on the German divisions and the technical distribution will remain unchanged,” noted Brambink.
"We await to see the outcome of the first main action proceedings this year. So far, the UPC has exceeded expectations," added Moore.
Infringement claims and counterclaims
The court has seen 134 infringement actions filed to date.
The number of total infringement actions compared to that of standalone revocation actions (39) reveals that this court is currently of particular interest to patent owners, according to Brambrink.
Of these 134 infringement actions, 54 were submitted to the Munich local division, 27 to Düsseldorf, 16 to Mannheim, 10 to the Paris local division, and seven to the Hamburg division.
The Nordic Baltic regional division received six infringement actions.
The local divisions in Milan and The Hague each saw four infringement actions, while Brussels received two.
The Helsinki, Copenhagen, Vienna, and Paris central divisions each received one infringement action.
From a technical perspective the infringement actions focus still on disputes over electrical patents (50 cases in patent class H) followed by life sciences (30 cases for class A “Human necessities”) and mechanics (21 cases in class B “Performing operations and transporting”) as well as physics (19 cases in class G).
With regard to forum shopping, the strong focus on the German divisions—which was already detected when the court launched—still remains unchanged, explained Brambrink.
In addition to infringement actions, the court has processed 165 counterclaims for revocation related to 63 individual infringement actions.
This high number of counterclaims is due to the previous rule that required each defendant in an infringement case to file a separate claim for revocation.
The court has also received 32 applications for provisional measures, which include requests for preserving evidence and orders for inspection.
The Paris central division received 35 revocation actions, while the Munich central division saw four revocation actions filed.
Court of appeal activity
The Court of Appeal has been active as well, receiving three appeals under RoP220.1 (litera a or b), 13 appeals under RoP220.1 litera c, and 47 appeals under RoP220.2.
Additionally, the Court of Appeal received two requests for discretionary review, five applications for suspensive effect, and 15 applications for an order for expedition of an appeal.
English has emerged as the predominant language of proceedings at the Court of First Instance, accounting for 50% of the cases, while German makes up 44%.
French, Italian, and Dutch accounted for 6% of the cases.
Strategic landscape in UPC proceedings
The UPC has seen strategies, both defensive and offensive, being formulated and tested.
Moore noted the emergence of a defensive strategy that involves pre-emptively filing revocations actions.
“This allows the revoking party to gain the upper hand in the litigation and can lead to a subsequent infringement action in a local division court, between the same parties and in relation to the same infringement, being stayed or transferred in order to combine the central division case, where there is a counterclaim for revocation in the infringement action,” he explained.
On the offensive side, different regional courts are being tested, with the German courts—in particular Munich—being used most frequently.
Andrew Moir, partner at Herbert Smith Freehills, has been assisting clients across all UPC matters, from deciding on opt-in vs. opt-out strategies to handling full UPC proceedings.
“Often our advice forms part of a broader role coordinating other litigation, where UPC proceedings are one of a number of sets of proceedings worldwide, and involving our teams in France, Germany, Italy and elsewhere,” he said.
Brexit means that currently, the UK courts are the only option for enforcing a patent in the UK.
“Managing the procedural differences between jurisdictions (for example, the heavily front-loaded nature of the UPC relative to the UK) has been particularly interesting," concluded Moir.
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