Opinion
Unified Patent Court (UPC) news is often interesting, sometimes even exciting, but this week I was (almost) shocked. I wanted to comment on it briefly with a view to the UPC docket distribution debate (“UPC DDD” or “UPC D3” would be suitable acronyms, while “UPC 3D” would be ambiguous), which I care about. And this involves the UPC venue that is geographically closer to where I live than any other, though my personal favorite “underdog” division continues to be in Vienna, followed by Paris for a mix of logistical and linguistic reasons.
At first sight it looked like the ordinary course of business at the UPC when we discovered a couple of applications for provisional measures (i.e., preliminary injunction (PI) motions) brought by Ericsson against ASUSTeK in the Milan Local Division (LD) (April 8, 2026 LinkedIn post by ip fray).
Then someone (from a non-sponsor organization, but one that has a subscription) pointed me to the fact that the patents were the same ones that Ericsson had already asserted against the same defendant in the same LD in June 2024 — docketed on June 14, 2024 to be precise— and where no decision has come down yet. That’s old! And odd! I then looked up the Milan LD’s public hearing schedule and found
- a May 8, 2026 PI hearing and
- a September 24, 2026 hearing of the June 2024 cases.
That is just crazy. It means that those two cases will have taken approximately 830 days, and almost 120 weeks, from docketing to hearing. Then you can add another four weeks, if not more, until a decision.
Another way to look at this: the UPC had just celebrated its first anniversary when the cases were filed, and will be well over three years old when they finally get decided. By then, the pendency of those cases in the first instance will amount to well over two thirds of the entire history of the UPC.
The last publicly accessible orders I could find in those cases relate to confidentiality and deadline extensions. In one case, the rejoinder deadline was extended to September 22, 2025. That was already way beyond the normal UPC timelines, but why would it then take one year and two days from that pleading to the hearing? In other words, why does it take an amount of time from rejoinder to hearing that the UPC normally envisions for everything?
And the most important question of all: how is this going to be viewed by any actual or prospective UPC plaintiff as an invitation to sue in Milan?
This is not the highest-profile dispute, but it isn’t insignificant either. Both Ericsson and ASUS are parties to many standard-essential patent (SEP) cases in the world.
The same can happen in the Munich LD due to inundation. Last year, Dolby faced a similar situation there as Ericsson does in Milan. The difference is that Ericsson brought two PI motions in Milan while Dolby went to the Munich I Regional Court with a request for a SEP PI, which succeeded and after which injunction it didn’t take long until the defendant settled.
What stakeholders (not to the cases mentioned before) have told me is that the Milan judges tell parties at certain industry gatherings that they should come to Milan. One key player in the patent business told me that the food is better and five-star hotels1 are way better in Milan than in Munich. And even the beer, he said, is at least competitive, but I don’t drink alcohol, so I have no idea.
In the end, however, time to trial is more important than convenience. And regardless of how long parties wait for a decision, they want a high-quality ruling, with a view to an appeal and for predictability.
I am all for a less lopsided docket distribution. I’ve repeatedly suggested, publicly and in private conversation, to file in places like Vienna. Last month, I commented on some ideas and outlined a proposal of my own. Meanwhile I’ve also seen a Rule 28-centric proposal by August Debouzy’s Lionel Martin that actually has a consistent philosophy: I propose to increase the transparency and predictability of venues like Vienna by letting them offer specific panels and hearing dates, and Mr. Martin wants the de facto timelines of venues like the Munich LD to be clarified upfront. The combination could make a difference.
But when such things happen as in Ericsson v. ASUSTeK in Milan, which is nothing short of self-sabotage, don’t be surprised if some look at this and say No, grazie. And while the UPC’s growth is guaranteed by the rising popularity of unitary patent protection, the Munich I Regional Court still gets a similar number of cases as the entire UPC. It is fast. The decisions are very well-crafted. They offer new opportunities for FRAND disclosures and a justice delayed is justice denied approach to PIs (March 30, 2026 ip fray article). Those factors drive venue choices to a greater extent than hotels, food, and beverages. Ideas that would just shift cases from the UPC’s Munich LD to the Munich I Regoinal Court get the UPC nowhere.
- It’s been about 25 years since I last stayed at a Milan hotel, but it’s plausible. Munich has a higher quality of life than other large German citites, but it’s definitely not where you find really great hotels. I have had the chance to try out different Munich hotels since I left that city. The Rosewood is still on my bucket list, and I haven’t stayed at the Vier Jahreszeiten yet, but I’ve been there for many meetings. It’s fun to suddenly sleep at places you walked by for so many years, or where you went to have meals and business meetings on many occasions while you lived in that town. What I can say is that Munich has a lot of room for improvement. If I had to choose between the best Munich hotels and the Columbus Hotel that is almost next door and which I’ve recommended to visitors, I would rather sleep at the latter, even though it’s just a Hilton (a chain that I consider pretty good, but not totally top-notch). And we have several more prestigious and luxurious ones here that I’ve also recommended often. I would prefer my favorite Paris hotel, the Park Hyatt Paris-Vendôme (another hotel chain that is upmarket, yet not among the most expensive ones), or the Sans Souci in Vienna by a significant margin over what Munich has to offer. I would, however, choose the best Munich hotels over the ones I know in Brussels, Amsterdam, Dusseldorf, Helsinki, and some similar cities where the quality of life leaves a lot to be desired. In London there are absolutely spectacular hotels, but the best ones I tried there are in noisy locations and/or have old noisy air conditioning, which is why I prefer the Royal Lancaster, which so many in the patent law community know because of the many IP events there, even though the food is not remotely comparable to what you get at the Savoy or the Ritz. ↩︎