Context: U.S. patentees are the second-most prolific users of the Unified Patent Court (UPC). As of March, 44 U.S. patentees had availed themselves of the UPC, while roughly 45 defendants were being targeted in UPC actions (March, 2025 UPC annual report). Some U.S.-based patent attorneys have begun to compare the UPC as an enforcement venue with the United States International Trade Commission (ITC) and U.S. district courts. They have questioned the prospects of using U.S. district courts as a single leverage point, and criticized the ITC’s overall slower timeline and more costly discovery process (March 27, 2025 Sterne Kessler blog post). Injunctions and speed are the top two concerns, although it should be noted that some members of the United States Congress have proposed measures to lower the bar for issuing nationwide injunctions (April 9, 2025 New York Times article). Further, yesterday, the United States government filed a Statement of Interest in a patent infringement dispute in which Radian Memory Systems is seeking an injunction against Samsung Electronics (June 24, 2025 IP Watchdog article).
What’s new: The UPC has become the “default setting” for EU patent litigation, as national systems are undergoing a “brain drain”, leaving them in a current state of “shock”, Bardehle Pagenberg’s Tobias Wuttke said on a panel focused on the UPC at the 2nd Annual IP Dealmakers Europe (May 12, 2025 ip fray article) in London yesterday. German courts are seeing the biggest “brain drain”, according to Mr. Wuttke, who noted the recent suggested closure of the Düsseldorf Regional Court’s third patent chamber due to judge migrations to the UPC.
Direct impact and wider ramifications: His fellow panellists Jako Eleveld of Philips and Bernhard Thum of Thum & Partner agreed that the UPC should be preferred, especially by U.S. patentees looking to launch parallel suits in Europe. While Germany has “nice tools”, the UPC has the “best judges in Europe” and the pan-European injunction really forces licensees to the negotiation table, they noted. Mr. Eleveld even went so far as to question why companies would even need to file litigation in the U.S. with the UPC’s presence.
At the 2nd Annual LF Dealmakers Europe in London yesterday, Michael T. Renaud, Chair of the IP Division at Mintz, who moderated the panel, noted that roughly 60% of patents challenged in the UPC’s Paris seat of the Central Division (CD) have survived. This means that if this is launched in parallel with a case in Munich, for example, you only need one patent to survive, he said. The Paris CD is “less lethal” than the U.S. inter partes review process, and the chances of coming out of the CD with a viable infringement claim are “pretty high”, he added.
So, he asked, does it make sense to file parallel actions in both the UPC and Germany?
In this case, Bernhard Thum of Thum & Partner said the UPC should be preferred because of Germany’s “brain drain”:
“It’s not the same place as it was two years ago.”
While German litigation has “nice tools”, the UPC has “the best judges amongst the Member States”, Mr. Thum said. He noted that having both would indeed increase pressure on a competitor – but only under certain circumstances.
Mr. Wuttke agreed with Mr. Thum. While the Munich Regional Court is currently the biggest patent court in Europe, it is all dependent on the judges there, he said. If one or both get promoted, the same thing that happened in Dusseldorf and Mannheim will occur there, he said, adding:
“There is a strategy in [launching parallel actions], but I think it entails the risk that the next round of judges’ promotions comes and then you lose your presiding judge and your German case goes south.”
Why still opt for U.S. litigation?
That is a question Jako Eleveld, VP and Head of IP Licensing at Philips, asked the audience, to which Mr. Renaud noted the U.S. is still bigger (even with the current UPC structure). Plus, he added, while the ITC appears to have a longer final decision timeline (15-18 months in 2024: June 19, 2025 ip fray article) than the UPC, the latter only has data for the cases resolved in the past two years, which gives it a “misleading” median of 14 months.
But there are many other benefits to using the UPC in global enforcement campaigns, the panellists said.
Mr. Eleveld noted that while the UPC has strict timelines and is slightly more expensive than German district courts, the pan-European court is “good quality”, much more efficient, and reaches a much more widespread area than Germany alone.
Fellow panellist Emily O’Neill, Head of Patents at BAT, noted that the ticket size, time, and strength all come into assessment when deciding whether to use the UPC or not. If, of course, the defendants are not even present in many of the UPC’s jurisdictions, then it is not financially viable.
Mr. Thum highlighted that many of his clients in the medical device sector will have been selling their products in hospitals across the entire continent. But, while in the past they would not have wasted resources on filing cases in Austria and Italy, for example, the UPC grants access to 18 countries (with more to come soon).
“It’s a perfect tool,” he said.
The power of injunctions
One thing all panellists also agreed on is that the real benefit of the UPC is the pan-European injunction.
“If there is a real threat of an injunction, then it is a game changer – it is why the U.S. district courts are so difficult to use as a single leverage point,” Mr. Renaud said.
Mr. Wuttke, who called the UPC a “de facto automatic injunction system”, also noted that the UPC injunction “really has teeth”. If a licensee is in contempt of court, the penalty payments are huge and apply per day. This means the sanctions are “real” and must be taken seriously – appealing against such penalties has no suspensive effect, which is different from what is seen in Germany, he added.
Mr. Eleveld agreed, emphasizing that injunctions “remain necessary” to force certain licensees to the negotiation table. Also, he said, some unwilling licensees would often hold out just for Germany, meaning an injunction could be circumvented by not selling in Germany but continuing to do so in the rest of Europe.
“That strategy is less viable with the UPC,” he concluded.