Earlier this week, the European Commission published a study on the enforcement of intellectual property rights (IPRs) in the EU as a follow-up to an earlier (2017) evaluation.
The first two topics are proportionality (with a focus on patents) and patent assertion entities (PAEs). We can keep this short because there is nothing alarming to be found, and the timing of the study, with most of the related work being done in 2024, makes the findings meaningless with a view to the Unified Patent Court (UPC), which opened its doors only on June 1, 2023.
Proportionality
For lack of UPC case law on injunctions at a stage when only a few cases had come to judgment in the UPC’s Court of First Instance (CFI) and no permanent injunction had been reviewed by the Court of Appeal (CoA), the study can’t say anything conclusive about the UPC’s application of the proportionality principle. It is regrettable that the study does not give the UPC CoA credit for the tailored remedy in Edwards v. Meril (November 26, 2025 ip fray article). In that case, the Paris seat of the Central Division (CD) and the Munich Local Division (LD) had both taken the interests of patients with a certain size requirement into account, and the CoA adopted the even patient-friendlier one of the two approaches.
As far as patent injunctions in Germany is concerned, proportionality arguments are raised, but they don’t get traction. The German legislature codified the case law of the country’s Federal Court of Justice in 2021, and unsurprisingly nothing changed. The study acknowledges this much.
PAEs
Earlier today we reported on a new UPC case that shows so-called PAEs are often needed to enable innovators, including small European innovators (in that case, FusionLayer), to monetize their intellectual property (February 1, 2026 ip fray article). But there is constant lobbying pressure on the EU Commission and other policy-making institutions to make it harder for PAEs to enforce patent rights. Nonetheless, the study notes that there is no widespread problem with PAE litigation in Europe.
There is a claim that patents asserted by PAEs in the UPC are of lower value, but that assessment is based on such indicators as the number of citations (which are unrelated or, at best, only indirectly related to whether a patent is likely to be valid and infringed). Again, the timing of the study makes it practically meaningless with a view to the UPC. Even though it was released only now, it is based on the 2024 state of affairs. That was too early in the UPC’s history.
For lack of meaningful UPC decisions and statistics, the report then discusses a secondary (if not tertiary) matter: security for litigation expenses. We appreciate that the authors of the study apparently became aware of the CoA’s security-related decision in Network System Technologies v. Volkswagen because of our September 17, 2024 article.
All in all, this is not the time to jump to conclusions. EU policy makers should let the UPC continue to do its work.
References to ip fray
