Opinion
On the occasion of the UPC’s third birthday, we’ve produced a podcast that should go live this week. And in recognition of the notoriety of the UPC in worldwide patent litigation circles, we’ll now stop providing the full-length name. We’ll just write UPC without explaining it because everyone in this field knows it.
What the UPC has accomplished is remarkable. The judges and all court staff deserve the greatest respect for what they have put in place.
That, however, does not mean that one should wear rose-tinted glasses all the time. It’s important to face the facts. There is no question that the UPC is here to stay, but it’s not all going great. I want the UPC to succeed. We are, however, also all in on Brazil; we have four contributors from Asia; and I’ve traditionally been extremely interested in U.S. cases.
Stagnation
The number of “cases” filed with the UPC is not a meaningful metric. It even includes appeals, of which there are obviously more at a later stage than an earlier one. The UPC reports the total nunber of “cases”, but only one number really matters: that of the infringement complaints. Even most requests for provisional measures motions lead to an infringement complaint sooner or later.
Let’s compare the first four months of this year to the same period in the years before:
The sample size of approx. 60 is not large, but it is sufficient: it allows the conclusion that there could be a problem. Variance is caused only by multi-case disputes if several filings are made in parallel. It does not look like there presently is growth.
The second half of last year was actually very strong. Here’s a comparison of monthly averages:
We can’t compare particular months from the second half of 2025 to the prior period because the UPC temporarily suspended its caseload reports. But for individual months the sample size is too small anyway.
One has to keep an eye now on what numbers will be reported for the months ahead. There is considerable risk of 2026 ending up a weaker year for the UPC than 2025.
Adoption of unitary patent and BSH should actually spur growth
Adoption of the Unitary Patent is ahead of projections. Out of the 120K European patents granted by the EPO in 2025, unitary effect was requested for 28.7%. This is a steady climb from the 25.6% recorded in 2024. And one can see ever more unitary patent assertions in the UPC, which has a monopoly for that instrument.
BSH Hausgeräte v. Electrolux creates opportunities for the UPC that should normally outweigh the effects of some patent holders preferring long-arm enforcement in national court.
Given those positive factors and the fact that evolving appellate caselaw makes the UPC more predictable, one would normally expect to see some growth. With more and more unitary patents being asserted, it should not just be a zero-sum game that it appears to be, for now.
The strong numbers in the second half of 2025 were achieved despite the Munich I Regional Court having had an extraordinary year with more than 330 cases. For this year, the Munich court expects a significantly lower number of filings, yet the UPC doesn’t appear to benefit.
Effect of court fee hikes should be limited
As of January 1, 2026, various UPC fees increased. That may have had an effect, but it should not be huge: the cost of legal representation dwarfs the UPC’s fees.
Largely untested: damages and actual enforcement of injunctions
Some patent holders are still hesitant to use the UPC because they first want to see how the enforcement of injunctions works in practice. That does not mean to say that they have doubts, but it is sometimes easier to prevail on the merits than to actually enforce.
So far, the UPC is just an injunction jurisdiction. It is unclear whether there will ever be a sizable damages opportunity. Everyone knows that European damages awards are traditionally not “Texas-size” amounts.
Venue choice complicated by delays in most popular divisions due to overload
When looking at venue-specific trends, it is interesting to see that the Hague LD has overtaken Hamburg. In the first four months of this year, only by a hair’s breadth, and in June to December 2025 it was just a 21-17 lead, but still noteworthy, given for how long the German LDs were towering above the rest.
I’ve tried to encourage parties to file in more venues, particularly in Vienna, but it appears to be very hard to convince companies not to file in the most popular venues. But if you file in Munich now, you must be patient.
If the UPC simply responded to “demand” like a business, it would now have four panels in Munich, and that would guarantee significant growth. But it would not be easy to reconcile with the idea of a European court system.
What might happen in “competing” jurisdictions?
United States
For patent damages, the U.S. is not just way ahead: it’s unrivaled, despite the fact that huge awards are routinely overturned. And, at the moment, inter partes reviews (IPRs) are pretty much dead, which (temporarily) increases the value of U.S. patents.
But the U.S. patent litigation market is already pretty saturated at 4-5K district court cases per year, so the restrictions on IPRs have not trigggered a lot of incremental filings.
The U.S. International Trade Commission (ITC) is ever more popular, not least because appellate case law on the ITC’s domestic industry requirement appears rather expansive.
The economic gap between the U.S. and Europe continues to widen. The Wall Street Journal has rightly asked: “What happens when Europeans find out how poor they are?” It’s not just about the consumer market, but also about companies who can be sued over their manufacturing operations. GDP matters, whether you seek damages or injunctions. Even if patent royalties are often agreed on a global basis to keep things simple, a defendant’s exposure to an injunction is a function of the profits generated in the market in question, and for damages calculations, profitability is key, too.
The USPTO receives 3-4 times as many patent applications per year as the EPO. Even if one adds the modest numbers of filings with national patent offices on top, the U.S. is still way ahead.
Two types of legislative change could greatly increase the attractiveness of patent litigation in U.S. federal court and would adversely impact the UPC:
- broader scope of patent eligibility (PERA bill)
- easier access to injunctions (RESTORE bill); simply put, if the U.S. Supreme Court had not done what it did in eBay, the U.S. would be even further ahead
Brazil
Brazil represents only 2% of global GDP, but the speed of the proceedings there and access to injunctive relief have made it a highly popular patent jurisdiction. We are following the developments there with great interest.
Unless certain implementers’ lobbying activities succeed and Brazil complicates enforcement, it is a force to be reckoned with. Major innovators are filing more and more patent applications there (May 27, 2026 ip fray article).
United Kingdom
UK patent litigation is insanely expensive when considering the size of the market in question. That is why some judges there want to give their customers value in the form of global leverage. That juridictional overreach has likely resulted in an opportunity cost for the UPC: if some disputes such as Nokia’s video patent disputes with Warner Bros. Discovery and Paramount or Huawei’s Wi-Fi dispute with TP-Link had not been subjected to UK FRAND determinations, the UPC might have received several more filings. And apart from more filings, the UPC would simply have had the chance to hand down more SEP decisions, which in turn might also have attracted more filings.
In principle, the CoA realizes that the UPC can’t condone usurpation, but it is not clear whether it will go far enough (May 29, 2026 ip fray article). It doesn’t strengthen the UPC in the slightest when it allows foreign courts to bar a UPC claimant’s counsel (under the threat of prison sentences even for lawyers) from making a clear and compelling case in the UPC.
India
India’s share of global GDP is only at about a level with the UK, but growing while Europe (including the UK) becomes less relevant every year. The only problem in India is how the courts organize themselves. The proceedings take long, and in the meantime the judges may change. If India streamlined the process, it could become a significantly more popular patent enforcement jurisdiction. Two of our contributors are Indian Advocates.
China
The potential for patent enforcement in China appears underexploited. We will talk about that on other occasions as we have two Chinese contributors as well.
Japan
The Tokyo District Court is definitely trying to attract more cases. Partly due to favorable conversion rates, Japanese patent litigation is competitively priced. There could be some growth there in the years ahead. The global share of GDP is just 3.5%, though. Japan used to be much stronger.
A house divided…
…is not what the UPC itself is. Its judges collaborate across borders with an incredible team spirit. But there are apparently different schools of thought in the Administrative Council and among practitioners from certain countries.
On the occasion of this anniversary, I just want to say that this is not the time for weakening the UPC through politically motivated measures. I’m in favor of such measures as persuading all UPC panels to outline preliminary views at the outset of hearings. I also continue to believe strongly in a proposal I made before, which is to define specific LQJ panels at LDs that have only one resident LQJ, and then offer slots to those who want to take them. But what some people would like to do is too risky and at the same time not really likely to solve the problem of patent litigation firms that have lost much of their domestic opportunity without being strong in the UPC business. That’s unfortunate, but a fact of life.
The UPC also needs to present a united front to litigants leveraging foreign judicial overreach to derail UPC proceedings and compromise the right to be heard, as just happened last week.
Long-term growth potential
The UPC is not going to experience explosive growth anytime soon. And if mistakes are made, it can suffer serious setbacks.
The UPC’s single biggest problem is Europe’s economic weakness. For a long time, Europe’s share of global GDP has been shrinking. As mentioned further above, there is no other metric that is nearly as meaningful in this context as GDP.
But it is not a given that all the economies that gain share at Europe’s expense will offer swift and strong patent enforcement. Most of them probably won’t. The UPC covers about 14% of global GDP and offers access to injunctions. For the next ten years, I see significant potential for growth barring a force majeure like a euro crash.
I don’t believe that the UPC will get to the point where even those professionals whose business it has adversely impacted will find enough opportunities. It’s not like the sky is the limit.
Contribution to European innovation?
I’ll discuss this in more detail on another occasion, but the UPC, while great for many practitioners, is far from making any non-negligible contribution to European innovation and economic growth. For instance, there is not a single startup that can raise more funds now thanks to the UPC. Innovation policy requires different measures than internationalizing patent enforcement.