This morning the Unified Patent Court (UPC) released its case load figures (November 5, 2024 UPC news item), as it does on a monthly basis. ip fray focuses on infringement lawsuits as the single most relevant metric and would like to share a few observations.
Monthly filings picking up again
A total of 67 infringement cases were filed with the UPC during the seven months of 2023 in which it accepted filings. That number was not huge, given that there must have been some pent-up demand for multi-country enforcement, but it wasn’t bad either. Also, that number does not include various applications for provisional measures (preliminary injunction (PI) motions).
In calendar year 2024, the number of monthly filings has been in the double digits without exception, but it went down to 11 in August and September, which is obviously attributable to the European summer vacation season.
14 new filings in October are a positive sign, though far from the record month of this calendar year (June: 21 filings) and just at a level with the average of the first calendar quarter of 2024 (14.3).
Arguably, two of the October filings were particularly high-profile:
- Supercomputer firm ParTec’s lawsuit against Nvidia over its AI chips: first major AI lawsuit in the UPC and first direct enforcement action (as opposed to a customer lawsuit) against Nvidia, the corporation with the highest market capitalization in the world (October 28, 2024 ip fray article). What makes that case even omre important is the fact that injunctions are sought over two patents (so it’s practically two cases) and in all 18 countries. Also, one of the patents-in-suit is a Unitary Patent.
- ArcelorMittal’s steel strip patent lawsuit against XPENG, which thereby became the first Chinese automaker to get sued in the UPC (November 1, 2024 ip fray article).
Those are the kinds of cases that draw attention to the court and encourage other major patentees to file their cases in the UPC. And many October filings haven’t shown up yet in the public case register, so there could even be more “bombshell” complaints.
What may also contribute to the UPC’s growth in the months ahead is the “Halloween Triple Whammy”: three Dusseldorf injunctions that issued on the same day (October 31, 2024 ip fray article). And on December 18, the Munich LD will render its decision in Huawei v. Netgear (October 30, 2024 ip fray article), which combined with the uncertainty surrounding SEP enforcement in German national courts now (November 2, 2024 ip fray article) could result in more SEP holders electing to file their cases in the UPC. Like German national courts, the UPC is bound by the decisisions of the European Court of Justice, but it can more easily reject the aberration that was Sisvel v. Haier while willing licensors may nonetheless prevail over unwilling licensees.
Munich reclaims monthly lead, but Hamburg got most post-summer-break filings
With four new filings in October, the Munich Local Division (LD) is again number one on a monthly basis (as it was in June, July and various other months).
In October, Hamburg follows closely with three filings, and that LD was actually number one in the total of September and October (i.e., post-vacation-season) filings: seven versus Munich’s 5 and Dusseldorf’s 4.
The Hague LD shows strongest growth in first five months of UPC Year 2
It is instructive to compare the UPC’s first twelve-month period (June 1, 2023 to May 31, 2024) to the first five months (June 1 to October 31, 2024) of the UPC’s second twelve-month period (June 1, 2024 to May 31, 2025). With 51 new filings during the most recent five-month period, the sample is reasonably representative, at least much more so than a single month could be.
The Hague LD went from only 3% of all first-year filings to almost 10% during the first five months of UPC Year 2. That division is a rising star.
So is the Hamburg LD, which got only 5.2% of all first-year filings, but almost 14% over the course of the last five months.
Plaintiffs and their lawyers presumably feared that the Munich LD was overburdened. The Munich LD’s first-year share was 40.3% and has recently gone down to 27.8%, which allows the Dusseldorf LD to catch up: it received 23.6% of all filings in the first five months of UPC Year 2 versus 20.2% during the UPC’s first twelve months. Dusseldorf is a serious contender for the top spot.
Mannheim has moved sideways (from 11.9% to 12.5%). The Paris LD’s decline from 7.5% to 4.2% is not meaningful given the small absolute numbers. It is a venue with significant potential.
The four German LDs combined had an almost identical share in UPC Year 1 (77.6%) as in the first five months of UPC Year 2 (77.8%). So there has basically just been a more equal distribution among German courts, with the other three gaining at the expense of Munich.
The Brussels, Helsinki and Vienna LDs have yet to receive a new infringement case in UPC Year 2. But such low numbers have major variance. The Vienna LD will hold its first hearing in a main proceeding on December 3, 2024. Given that it is the only German-language venue outside of Germany, and considering the composition of the panels there, it should also have significant potential for growth.
UPC infringement case filings still far below national courts, but pretty good for new judiciary
Focusing on calendar years now (as opposed to “UPC years”), it looks like the UPC will finish 2024 with approximately 170 infringement filings. There are two ways of looking at it:
- The number still appears low compared to the 700-800 infringement cases filed with German national courts on an annual basis in the pre-UPC era (Dusseldorf alone received approximately 370 filings in calendar year 2022).
- But UPC proceedings are frontloaded, which is one of the reasons for which they are more costly. Issues with the case management system did nothing to make the UPC more popular. The most fundamental factor to consider is that a new judiciary, even with many known faces on the bench, is less predictable and a lot will depend on how the Court of Appeal resolves appeals from final judgments.
It would be a good sign if new filings in 2025 passed at least the 200 or maybe even the 250 milestone. If some high-profile injunctions triggered settlements, that could make a major difference. There have been various settlements of UPC cases, but those were either low-profile disputes or the UPC was only one of various venues, without anything having happened specifically in the UPC that would make those settlements overwhelmingly attributable to the UPC.
Based on how things are going, there is no reason why the transitional period should be extended. Once it ends, the UPC will easily get a similar number of filings as German courts used to, if not more.
ip fray believes in the UPC, is impressed with the quality of the work that is being done there, and strives to be the go-to online resource on the UPC (as well as on SEPs), without completely narrowing its focus.