Opinion
It is understandable that patent litigation firms (including litigation-oriented patent attorneys) in countries like France and Italy are unhappy about the sky-high percentage of Unified Patent Court cases filed in Germany.
Even though the distribution of European patent infringement lawsuits was not much different prior to the UPC (and to some extent mirrors the countries of origin of European patents), the problem is that the new system, quite obviously, leads to consolidation. If you can get in one proceeding what would otherwise take up to (theoretically) 18, there will be less parallel litigation. Furthermore, if the stakes are high, travel expenses and time don’t matter anymore. Even if UPC cases come with bigger budgets, the efficiency gains adversely affect some firms’ business. There are many who benefit, but also a number of firms for whom this.
That development should have been foreseeable, but some hoped that somehow, magically, the UPC would redress the balance, as if such factors as longstanding attorney-client relationships did not matter. And they just repeat that mistake by now pushing for measures that are not just pointless but even have the potential to harm the UPC and/or small and medium-sized enterprises.
For the most part, the pie has been divided
Sorry to break the bad news to firms in certain markets, but it’s over. There was a window of opportunity early on. At the age of three, the UPC appears young by some measure, but there are now well-established firms with strong UPC expertise and brand names. There will still be some dynamics. But don’t expect miracles. There are some organizations that pay the price for those efficiency gains, and they’ll have to reposition themselves, such as by focusing more on other fields of IP or, more generally speaking, commercial law.
There is room for limited dynamics. For example, in the first four months of 2026, the percentage of filings in German-based divisions was down to 66% from 78% in the period from June to December 2025. The fact that it was 50% in April 2026 could be an outlier, but multi-month periods provide a sample size from which one can, cautiously, draw some conclusions. It’s not a definitive trend, but it does show that certain adjustments are possible.
Forcible redistribution of English-language cases doesn’t help local firms much
There are false hopes out there that if cases were forcibly assigned to particular UPC venues, local players would necessarily benefit. Let’s think of a practical example: a case that would normally be filed in Munich or Mannheim is sent to Paris or The Hague. As mentioned above, travel is not a factor in these cases. In SME cases it may be, but making litigation costlier for SMEs would raise a whole lot of other issues.
There is no doubt that local lawyers have known some of the local judges from before they joined the UPC. But there is no indication that this influences anyone’s chances. Otherwise no one would fly in UK lawyers.
The Dusseldorf LD’s Presiding Judge Ronny Thomas pretty much proves the opposite. He did some very important work on the appeals court there, but local litigators did not know him as well as they did his colleagues known from the lower Dusseldorf courtr: Presiding Judge (Hamburg) Sabine Klepsch, Presiding Judge (second Munich LD panel) Dr. Daniel Voss (“Voß”), and Dr. Bérénice Thom (Dusseldorf). Still, the Dusseldorf LD has been very popular from the beginning. And the quality of the decisions coming out of that LD is excellent. One doesn’t always have to agree, but we see the decisions coming out of Dusseldorf and can see why parties would choose that venue (which also applies to a number of other venues).
If anything helps local litigators, it’s linguistic diversity
In a case like KeeeX v. OpenAI et al., various French litigators are involved. A French company is litigating a patent that was filed in French, and the language of proceedings is French. That also applied to a recent appellate hearing, which again created opportunities for several French lawyers to deliver oral argument.
If that case had been filed in English, it’s possible that not a single French lawyer would have been involved. Not in Paris. Not in Luxembourg. Not because they’re not good, but because of longstanding relationships between the key defendants’ in-house litigation counsel (or U.S. firms coordinating foreign litigation for U.S. clients) with certain firms where lawyers have litigated even more UPC (and generally patent) cases.
None of those defendants would have given much weight to some lawyers’ prior acquaintance with Judge Lignières and Judge Gillet. On that panel, you also have Judge Prof. Tochtermann from Mannheim and Technically Qualified Judge Sanchini. Neither of them is French. Either of them has a vote. And there is no reason to assume that the French judges would extend any favors to French firms. As far as knowing someone’s thinking is concerned, you can now find plenty of non-French lawyers who have practiced in the Paris LD.
A single-language regime could raise constitutional issues
To the best of our knowledge, the UPC’s current language regime has not been challenged. But once you don’t allow the Paris LD to conduct proceedings in French or the Milan LD to do so in Italian, there is an unnecessary risk of provoking constitutionality challenges.
For example, the first sentence of Article 2 of the French Constitution says that the language of the French Republic is French. The EPO’s language regime at least ensures that all patent claims must be provided in French. And in the UPC, a French company that files a patent application in French (like KeeeX) can later enforce it in Paris (provided that there are local infringements) in a French-language proceeding.
Multilingualism is a problem for the EU that would have had to be solved decades ago for different reasons, but the UPC situation is distinguishable
Whether multilingualism is good or not depends on the context.
Due (or thanks) to where I live, where I have contacts, and from where I obtain information, I use four or five different languages any given day. If you sent me to a random UPC hearing, there would be a chance of well over 95% that I would be able to follow without needing simultaneous interpretation. But in strategic terms, I can see how multilingualism has been one of the reasons for Europe’s failure to build fast-growing tech companies. In Section 8.4 of a long article (more like a paper) on Europe’s competitiveness problem and related issues, I explained that in order to get ready for the Digital Era, Europe would have had to unite and agree on a common official language (with additional regional languages) decades ago. Instead, they converted the European Community into the EU with its huge shortcomings, and today the EU is so far behind the U.S. and China (the article I just linked to contains tons of data on that) that it cannot realistically catch up before Artifical General Intelligence takes over, and that one will in all likelihood not be developed in Europe. The EU claims to be a single market. It isn’t, and languages are one of the reason.
So, given that it would be preferable for Europe to agree on a common official language, why not start with the UPC?
Things are going well for the UPC as a whole, and languages are not an impediment. That is different from the tech ecosystem where the fact that companies couldn’t scale well during the first dotcom boom (1995-2000) and the web 2.0 era (the next decade) prevented Europe from having its own cloud hyperscalers and, generally, companies that would have been able to invest heavily in AI.
Things are apparently not going well for firms in some countries because the UPC cannibalized, to a large extent, local patent litigation, and most of the big opportunities go to firms that have traditionally handled more patent cases. Anyone’s frustration over that is understandable, but not a good reason to take ill-conceived or counterproductive measures.
Would anything improve as the result of a monolingual UPC? There are more reasons to be concerned over what could go wrong, and about the impact on SMEs, than to assume that the patent litigation opportunity for some firms could be restored that way.
Actually, the opposite would probably work better for local firms in certain countries: higher hurdles for switching to the language of the patent-in-suit.
Other approaches to the docket distribution problem should be prioritized
ip fray is interested in the UPC not being a single-country court. The local divisions whose presiding judges we’ve interviewed so far are the ones in Vienna and Paris. I’ve repeatedly said in my articles that parties should generally consider more LDs, and I’ve particularly (but not only) recommended Vienna. But those who make the decisions on where to file, or who advise the ones making those decisions, tend to be conservative. If they lose in a German LD, then at least they can say it’s where most plaintiffs go. But it’s not just that:
- The judges of “smaller” LDs should accept more speaking invitations because otherwise people will always just hear from those judges who already get most cases. (That is separate from the fact that I decided earlier this year not to attend any in-person conferences or similar events anymore, just meetings and court hearings.)
- I believe “smaller” LDs would get more cases if they were able to offer specific slots where you know beforehand the composition of the panel (apart from a potential TQJ appointment) and a realistic estimate of the time to trial. I proposed this two months ago.
- That idea is philosophically aligned with a Rule 28-centric proposal by August Debouzy’s Lionel Martin who would like more clarity on how long it takes to get a decision in a specific venue.
- It is a good thing that the international judges are increasingly appointed as judge-rapporteurs. I have noticed it on some UPC dockets lately.
- The Helsinki LD’s recent headnote concerning the adoption of case law from other LDs (in the absence of CoA precedent) is a good idea. At least it means fewer surprises. Maybe that idea should be developed further. For example, a “smaller” division could say that it will apply a “larger” division’s case law on anything where it does not have its own case law yet and which the CoA has not addressed. The obvious ones to follow would be Munich, Dusseldorf, or Mannheim. It could even be stated in an order, such as Mannheim first, but if nothing is available, then Dusseldorf, otherwise Munich. Of course, this would be revocable, but not for cases that were filed during the relevant period.
- And as mentioned before, it would probably help local firms if more cases were litigated in a local language. KeeeX v. OpenAI is a great example.
Some improvement is achievable. One has to be realistic, however, that the old times with lots of parallel litigation are history and the situation is way beyond the point of no return.