Context: There is a debate brewing over the current distribution of cases among Unified Patent Court (UPC) first-instance courts (or Local Divisions (LD)). While generally the system’s caseload continues to increase (March 24, 2026 LinkedIn post by ip fray), indicating popularity, the majority of those cases are being filed in Germany-based LDs. In early March, Prof. Willem Hoyng, the Chairman of the Advisory Committee for the UPC, sought input from UPC firms on the question of the “uneven” distribution, including from the European Patent Lawyers Association (EPLAW). We published an opinion piece on one of the responses to that request (Bardehle Pagenberg (ip fray firm profile)) last month (March 25, 2026 ip fray article). Meanwhile, ip fray also discovered last week that a case between Ericsson and ASUSTek, which had been filed in the Milan LD in June 2024, has yet to see any decisions come down (April 11, 2026 ip fray article).
What’s new: The EPLAW’s letter summarizing all of its members’ responses has today been made public, and it reveals polarized viewpoints between members residing in Germany and those residing in non-German jurisdictions (full letter below). While the vast majority agree that there are more cases being filed in German LDs and that the UPC is an “enormous success”, the former are not concerned with the current distribution, while the latter warn that it could:
- Undermine the UPC’s pan-European character;
- Limit judicial diversity at first instance;
- Slow capability-building in underused divisions; and
- Weaken political support among UPC member states and potential future joiners.
Interestingly, around 50% of the overall responses were provided by respondents from Germany, and the remaining 50% were from all other countries.
Direct impact: Those who shared their concerns with EPLAW also suggested a few measures that the UPC could adopt to “fix” the uneven distribution. Seven of the suggestions would not require amendments to the UPCA, and they include voluntary transfer mechanisms, a Presiding Judge can be any judge on the panel, and pausing or reconsidering further expansion of panels in already dominant divisions. Meanwhile, the remaining five would require amendments to the UPCA, including making English the default or sole language of proceedings, and enabling declarations of non-infringement to be filed in local/regional divisions (rather than only central divisions). One very unpopular suggested measure was court-forced centralized case allocation to LDs.
Wider ramifications: As noted by Professor Dr. Tilman Mueller-Stoy (“Müller-Stoy” in German) of Bardehle Pagenberg (ip fray firm profile), the EPLAW letter is “relatively” neutrally-worded and will “hopefully” allow for an expedient and “less emotional” debate going forward (April 13, 2026 Professor Dr. Tilman Mueller-Stoy LinkedIn post). It will be interesting to see whether the UPCA considers any of the proposed measures, some of which could be seen as “counterproductive” to the “success” of the court system. While one major argument is that the UPC has not yet been able to bring in any additional countries, and the UPC’s President himself recently publicly acknowledged that major economies such as Spain and Poland are not prioritising becoming Members, there are also other external reasons as to why they have not yet joined (including that there is no economic incentive).
This is a copy of the letter, dated April 3, 2026, and shared with its members today:
Below is a breakdown of the concerns (or non-concerns) highlighted by respondents, as well as the solutions that the EPLAW members have proposed.
Section 1: Reasons for the current distribution of cases
- History: the German share of European patent cases was already high pre-UPC times, meaning there were already existing strong ties between clients and German law firms, and they were already familiar with German judges.
- Predictability, experience, quality: German LDs have experienced judges and predictable outcomes for plaintiffs. Members also noted that German judges have a reputation for being more patentee-friendly than non-German judges. Predictability of panel composition was another important and even decisive factor in forum choice.
- Validation strategies and jurisdictional constraints: while European patents are often validated in only a small number of UPC states, this usually includes Germany.
- Practicality: German LDs are easier to travel to for them than LDs in other countries, which saves time and costs.
Section 2: Should there be any changes to the current system?
The letter chiefly underlines the major differences that emerged between respondents based in Germany and those based elsewhere. German-based members believe the current system is “satisfactory” and it is “too early to intervene”. More specifically, they said:
- Limiting the clients’ ability to file their cases before a German LD may be “harmful for the success of the UPC system”.
- Claimant forum choice is a key feature of the UPC design and a driver of early system uptake.
- Reducing forum choice leads to reduced predictability, which could materially increase litigation risk and therefore reduce attractiveness.
- The “uneven” case distribution may become less uneven over time, so it is too early to intervene.
- Competition will push quality and speed – an element of competition between LDs may lead to an attractive overall court system.
Members in other countries, meanwhile, voiced their concerns and said it is not too early to intervene, as the current system is:
- Undermining the UPC’s pan-European character.
- Limiting judicial diversity at first instance.
- Slowing capability-building in underused divisions.
- Weakening political support among UPC member states and potential future joiners – some members considered that additional capacity expansions in already dominant venues may exacerbate these concerns and intensify “German court” perceptions.
Additionally, non-German members noted that a court’s function is not to be “attractive”.
Section 3: Proposed measures
Without having to amend the UPCA:
- Publish updated division-level workload metrics, average time-to-interim decisions, and time-to-hearing/decisions to increase transparency;
- Voluntary transfer mechanisms (if the seized division is unlikely to meet target timelines);
- Non-local judges as judge rapporteurs in more cases;
- The presiding judge can be any judge on the panel (case-by-case basis);
- Encourage all divisions to increase predictability and efficiency;
- Increase cross-division allocation of judges to build user confidence in under-used divisions; and
- Pausing or reconsidering further expansion of panels in already dominant divisions (although some warned that this would send cases back to national courts).
Would need amendments to the UPCA
- Enable declarations of non-infringement to be filed in local/regional divisions (rather than only central divisions);
- Limit the number of local-national legally qualified judges on a panel;
- Make English the default or sole language of proceedings to facilitate broader judge mobility and reduce language-driven venue advantages;
- Retain the opt-out as a permanent feature even after the transitional period, to preserve user choice and address concerns about cost and venue concentration; and
- File actions centrally (to the registry) with allocation among territorially competent divisions based on caseload and objective criteria, with appeal or review safeguards (it should be noted that this suggestion was very unpopular among members).