In-depth reporting and analytical commentary on intellectual property disputes and debates. No legal advice.

Neither does the UPC need Spain and Poland — nor vice versa; but Ireland is an unfortunate outlier among non-members

Florian Mueller

Opinion

Here on this website, the objective is to be not only constructive but also relentlessly realistic. You won’t find many others talking about certain elephants in the room, such as

In the same vein, my commentary on the UPC’s third anniversary recognized admirable achievements while highlighting current stagnation, a glaring fact that no one else appears to be talking about either. And I said it clearly: the UPC does not (at least not to any non-negligible extent) make Europe more innovative or competitive. It benefits the winners in the new era, and I don’t want to be a hypocrite: ip fray is one of the beneficiaries, though we are also all in on Brazil, have brought in several great Asian contributors, and I’m traditionally most interested in U.S. litigation.

In the UPC docket distribution debate, the hesitance of Poland and Spain to join is grossly overattributed to where most cases are currently filed. If there is any country for which it would be mutually beneficial to join, it’s Ireland.

What Poland and Spain need is a national innovation policy agenda. UPC membership would contribute nothing to it.

By contrast, Ireland is a tax haven for large non-European innovators and a platform for UK lawyers to become UPC Representatives, and the only significant English-speaking country that could join the UPC in the foreseeable future. Its UPC membership would be mutually beneficial.

Let’s properly

  1. define the UPC’s Unique Selling Proposition (USP),
  2. take a bird’s-eye look at members and non-members,
  3. analyze the ramifications of BSH Hausgeräte v. Electrolux,
  4. consider the undesirability of the UPC coming under EU control, and then talk about each of the three countries mentioned above:
  5. Poland,
  6. Spain, and
  7. Ireland.

1. The UPC’s USP

In the global patent litigation market, the UPC is one of the most important offerings, but far from the only one. The U.S. is still way ahead with about 20 times as many patent infringement cases (and a higher number of patents per case on top). For standard-essential patents (SEPs), Brazil is by some measure more important at the moment than the UPC. Senator Mike Lee (R-Utah), who was once rumored to be a potential Supreme Court nominee, openly advocates that the U.S. focus on Latin America (“the future”), not Europe (“the past”). For a discussion of the global landscape, may I refer you to my post on the UPC’s third anniversary.

There are essentially four categories of UPC plaintiffs:

  • Most of the high-profile cases are brought by U.S. and Asian companies (December 8, 2025 ip fray article). They sometimes sue European companies. but most of the time they are looking for leverage over each other.
  • The last few large European innovators like Ericsson, Nokia, Philips, and Fraunhofer typically sue non-European companies. They, too, are just looking for leverage in global disputes.
  • In pharma and life sciences, the most important plaintiffs are typically from outside of the EU, too, but there still are some large European players there. What you are unlikely to find from Europe is something like 10x Genomics, though. Biotech is now an American and Asian industry.
  • And then you have those small European low-tech and mid-tech companies with often funny names like Bode – Die Tür GmbH, usually suing other European companies of a similar size and sometimes also non-European competitors. They seek to protect their markets. They go to Dusseldorf or the nearest local division. Those cases inflate the number of filings without bringing in much money (the UPC actually loses money on them) or making headline news.

Plaintiffs of the first three kinds would find it convenient if markets like Spain and Poland were additionally included in the UPC package even in cases where BSH doesn’t apply (quite often it does anyway). But their decision on whether or not to file in the UPC does not depend on whether Spain and Poland join. The relative increase in aggregate GDP (and there is no “per-head bounty” in patent enforcement1) would be less than 20%. That’s significant, but not a game changer.

What most plaintiffs want from the UPC is a multi-country injunction. Brazil and the Munich I Regional Court are faster; the latter can enter long-arm judgments. But the UPC has original jurisdiction over 18 countries, and exclusive jurisdiction over the Unitary Patent. That’s its differentiation in the market. It will never be able to compete with the U.S. on damages because of different legal traditions. But it offers leverage, and for now it’s much, much harder to obtain an injunction in the U.S. (which is why more and more patent holders seek import bans from the U.S. International Trade Commission (ITC)).

Relative to whether UPCland has a $14T or $16T GDP (with BSH territories2 included, it’s actually $28T anyway), it’s far more important how litigation and enforcement play out in the UPC relative to other jurisdictions. In the above-mentioned anniversary post I discussed possible changes in other jurisdictions that could either increase or decrease the UPC’s attractiveness to global litigants under ceteris paribus conditions. A single UPC rule change or CoA judgment that has patent holders concerned will do more damage than the benefit from some incremental coverage.

By way of comparison, Poland’s GDP is between that of the two largest German federal states (North Rhine-Westphalia and Bavaria), and Spain’s GDP is less than the sum of those two federal states.

2. Profiling: who has joined and who hasn’t; Europe’s north-south and west-east divides

In the table below, the rows that relate to “patent box” type of tax havens are italicized, and the ones for the three countries this article focuses on are additionally bold-faced. In the Netherlands, tax incentives exist, but are a smaller part of the reason than in countries like Luxembourg, Ireland, or Malta (or, outside the EU, Switzerland).

CountryEPO patent applications per million inhabitants (2025)UPC Contracting Member State?
Finland613.4Yes
Luxembourg548.4Yes
Sweden446.2Yes
Denmark445.9Yes
Netherlands388.3Yes
Germany292.9Yes
Austria245.0Yes
Ireland216.7No
Belgium214.1Yes
France159.3Yes
Malta125.4Yes
Italy80.9Yes
Slovenia80.2Yes
Estonia59.9Yes
Cyprus58.2No
Spain45.9No
Portugal34.2Yes
Lithuania32.2Yes
Czech Republic24.5No
Latvia20.5Yes
Poland17.0No
Hungary13.5No
Greece11.8No
Bulgaria11.2Yes
Slovakia10.7No
Croatia10.3No
Romania2.2Yes

When it comes to the number of per-capita patent applications, Europe is doubly divided:

  • There’s a north-south divide. In Italy, you even have a massive north-south divide within the same country. In France it’s also the case, with Sophia Antipolis having fallen far short of any European Silicon Valley vision, but largely due to centralization. I live on the Mediterranean Coast, as does about half of our team. The quality of life here is unrelated to the lack of innovative capacity.
  • There’s also a west-east divide because of the former East Bloc’s economic weakness under anti-free-market dictatorships. The only East Bloc country I visited before the Fall of the Berlin Wall was Poland (not even East Germany).

The top nine countries by per-capita EPO patent applications are all in the north. The tenth, France, is a hybrid. Then comes Malta (just a tax haven), followed by another north-south hybrid, Italy (#12). Northern Italy is almost Southern Austria while Southern Italy is almost North Africa. France’s and Italy’s hybrid status is evidenced by the fact that they are the lowest-ranked countries on the list that are neither purely southern nor former East Bloc countries.

Then come a couple of former East Bloc countries — Slovenia and Estonia (the latter being a general tax haven, but there is serious innovation taking place there) — and another tax haven (Malta) before Spain (#16).

Spain is followed by its Iberian peninsula neighbor Portugal and five former East Bloc countries, the fourth of which (#21 in total) is Poland.

We’ll talk about Ireland further below, but you can already see that it’s the only country among the top 14 not to be a UPC contracting member state (CMS).

3. If you can’t beat’em, join’em: BSH gives the UPC plenty of power over Spain and Poland at any rate

Apart from personal advantages for some individuals and maybe (just maybe) some firms, I can’t see any argument for Poland and Spain joining the UPC that withstands scrutiny other than this one:

As a result of BSH, Poland and Spain are impacted by the UPC anyway, and they can’t do anything about it (no antisuit injunctions) without an EU legislative initiative. I, for my part, would generally recommend that whenever the EU’s IPR Enforcement Directive (IPRED) gets amended (which the European Commission (EC) is disinclined to do in the near term: June 4, 2026 ip fray article), dealing with extraterritorial overreach should be the number one priority. It is the most important phenomenon to address.

So there is a pragmatic argument that by joining the UPC, they would at least be able to influence things a little bit, such as through the Administrative Committee and by providing their own judges.

But even that argument can be countered by (rightly) saying that one must look at the bottom line. The argument that certain European countries that are not EU member states are largely subjected to EU law anyway (particularly the European Economic Area (EEA) countries that are not EU member states: Norway, Iceland, Liechtenstein) must always be balanced against the benefits of retaining sovereignty in other ways. Norway (despite its theoretical resource wealth) and Iceland are going down the tubes anyway, and for the Principality of Liechtenstein there is no alternative to sovereignty, just like the Principality of Monaco could not adopt EU law without ceasing to be Monaco and, in the end, ceasing to exist. Another case is Switzerland, which is damaging itself but uncomfortably landlocked, which is not a subject to discuss here as it could not join the UPC anyway, for now.

From the UPC’s perspective, however, BSH means that the percentage of global disputes in which the additional membership of Spain and/or Poland wouldn’t matter is very high. So why bother? It would be foolish to weaken the UPC through harmful (if not counterproductive) measures to deprive plaintiffs of venue choice, which would dramatically reduce its attractiveness, in hopes of then bringing in countries over whose markets the UPC has at least some jurisdiction in most of the economically relevant cases anyway. With a view to leverage, global defendants could restructure their distribution networks so as to serve Poland and Spain from outside the EU, which would solve the BSH problem but come with significant complications, even more so if there is now only a European authorized product representative.

4. Undesirability of full EU control over the UPC

Given that there isn’t much for the UPC to gain from having Poland and Spain join, the sole reason for which some want it to happen is this idea that sooner or later each and every EU member states should be a UPC CMS. But would that really be a good thing, other than from a collector’s point of view?

There is considerable risk that Brussels would then take more and more control. To some extent, a court will always be independent. But you might see the UPC being integrated into the Court of Justice of the European Union (CJEU). You would see more and more initiatives in the European Parliament, a legislative body where legal (and sometimes illegal) corruption eclipses competence, concerning the UPC’s direction. And they would then let the EUIPO take over the Unitary Patent lock, stock, and barrel.

For the future of the UPC, it would actually be better to create an opening for non-EU member states to join. I’m not just talking about the UK, but it is the first one that comes to mind. As do Türkiye, Switzerland, and some others. The further the UPC is removed from the EU, the brighter its future.

5. Poland: the Eastern catch-up miracle, but too weak in tech

I have to start with my personal views so it doesn’t look like I underrated Poland. Far be it from me!

As I mentioned on LinkedIn, Germany’s tech weakness was already clear to me in the 1980s. It’s why I decided that English would have to become my working language3. But if anyone had told me during my visit to Poland in the mid 1980s that four decades later its economy would actually grow at a substantially higher rate than Germany and that the country would be more advanced in some ways, I wouldn’t have believed it. Substantial improvement, yes, there was room for that. But Germany’s self-destruction was not fully foreseeable. And it took both, Poland going up and Germany going down, for Poland to surpass Germany by some metrics and catch up massively by some others.

Even in 2005, on my second visit to Poland (which included an invitation to the country’s parliament, the Sejm, and a joint press conference with a deputy minister), I’d have considered it unrealistic. Similarly, I wouldn’t have thought in the 1990s, when there were serious crime problems in Germany especially (but not only) in the border region, that Poland would become a way safer and cleaner country than Germany.

The Polish people have my admiration for this, and there are even close personal ties by now. But let’s be realistic: Poland’s relative success does not make it fit for the AI and robotics era in absolute terms. It’s a no-tech, low-tech, maybe partly mid-tech type of success story. Some of it has to do with manufacturing. That economic structure is also reflected by the low number of per-capita patent filings.

As I’ve explained on another occasion, network effects at the ecosystem and company/platform level make it impossible for Europe to catch up before AI and robotics (both in the hand of U.S. and Chinese companies) have taken over. That said, until all research and development is performed by Artificial General Intelligence (AGI), there still are opportunities. Poland needs an innovation policy agenda, also for biotech. Even tax incentives are apparently not enough.

Joining the UPC would contribute nothing in that regard. Absolutely zero. Any Polish patent holder can sue in the UPC anyway.

I think Poland should generally avoid any closer EU integration, be it the euro (the Ponzi scheme among major currencies) or the UPC. It should retain all of its options. AGI and robotics will inevitably put Europe in a terrible position where what it has is worth very little and what others have (tech and resources) rules the world. European countries will need help from the outside, for which a Marshall Plan 2.0 is the most likely scenario.

By (so far) having avoided self-inflicted harm, unlike Western EU/EEA member states, Poland might actually find the greatest opportunity in aligning itself with the U.S., which subject to the overall geopolitical situation4 and the agenda of the U.S. government at the time could make it necessary to leave the EU5. What Poland would bring to the table is a healthy population structure, access to the Baltic Sea, and generally a strategic location. Every little loss of sovereignty would only complicate distancing itself from the EU (“Plexit”). For now, there is no reason why some countries wouldn’t want to take subsidies and sell into the EU market. But the fallout from AGI and robotics will include Europe’s definitive impoverishment for lack of tech, natural resources, and cheap abundant energy. Relative to the U.S., Europe is already poor, even though most Europeans don’t understand the extent of it6. AGI and robotics will take the discrepancy to a whole new level.

There is no strong incentive for Poland to join the UPC. In the short term, it would just cost money. Again, some professionals (public servants and some in the private sector) would benefit. But they are too few for there to be a public-interest argument in favor of joining.

6. Spain: not much of a future beyond tourism (if safety doesn’t decline further) and agriculture

Spain’s recent economic “growth” is fake growth (in no small part owing to EU COVID funds) like what one could see in Greece a few years ago. Structurally, that country is weak, and based on purchasing power parity, Poland is set to overtake Spain soon.

Spain has suffered. and continues to suffer, from a major brain drain (on average, the level of education there is low compared to Northern Europe) while capable Polish people are actually returning to their country now that they find opportunities there.

Innovative small companies like Fractus are hard to come by in Spain. Its economic structure is pretty much that of a banana republic. Imagine that professional soccer, which effectively depends on just two teams there, represents about 2-3% of GDP. By comparison, U.S. pro sports is a way bigger business (good luck finding any European team among the ten most valuable ones in the world), but only a minuscule part of the overall economy.

They have some well-respected patent judges in Barcelona. But that city would instantly be, in Trumpian terms, the worst “shithole city” among UPC venues (which says something considering the state of affairs of places like Brussels7, Milan, Paris8, and Lisbon9, in all of which one has to be very careful to avoid large parts and where even the city centers are not kept safe). The crime stats10 are clear. Residents don’t even dare to go out at night11. It’s a place to avoid, and that’s why I’m glad about every year that goes by without Spain joining the UPC.

In the AGI and robotics era, Spain will have little (well, Zara) but tourism (provided that safety doesn’t deteriorate further12) and agriculture to offer. There is also some potential there for renewable energies, unlike in countries for which nuclear energy is the only option for lack of reliable sunshine and wind. So Spain could do a little bit better than some other European countries at that stage. But in the near to mid term, it’s not a key market relative to what the UPC already has.

7. Ireland

The two countries with the highest per-capita GDP in the EU are Luxembourg and Ireland. Both owe it to their tax policies. For Ireland, Gross National Income (GNI) is therefore a more realistic measure as it excludes the parts of GDP that are not really generated there (except for accounting purposes). GNI is closer to €60K per capita, which is still pretty good, even ahead of Denmark or Germany.

Ireland would be a far more logical fit for the UPC. And it already plays a role because of UK lawyers who have become UPC representatives through Irish offices.

Having Ireland join would make it much easier for the UPC to hire native English speakers in some positions.

Relative to country size, a Dublin LD would have the potential for a significant (even though not huge) number of cases per year, given the companies that are based there and the possibility of some U.S. plaintiffs being likely to consider suing in Dublin13.

Does Ireland need the UPC? No. Vice versa? Neither. But it would be a win-win. The only problem there is that voters have grown EU-skeptical. While there are objective reasons to consider the EU a socioeconomic policy failure, Ireland has benefited enormously. It went from the poorest Western European country to (if one does not count smaller ones) the richest because of how it managed to leech off the Single Market, aided by some of the EU’s structural design flaws and politicians in other countries who failed to defend their national interests. Ireland is potentially the only country that would face a serious economic sustainability problem outside the EU. But many voters are (understandably) angry, and that’s why a referendum over UPC membership could be hijacked as a means of expressing frustration over Brussels policies that are terrible indeed, but have nothing to do with patents.

  1. From a patent remedies perspective, it is either about monetary relief, in which case it is all about money, or about injunctive leverage, in which case it is all about profits that would be lost. For damages, the U.S. is by far and away the greatest opportunity, despite the fact that huge verdicts are often overturned or adjusted. For injunctions, which is the opportunity the UPC presents, it is a company-specific assessment of profits. For example, Apple’s market share in Europe is much lower than in the U.S., but it sells its products at higher prices relative to purchasing power as it focuses on a narrower market segment. But most of the time, profits are greater in affluent markets, and so are unit volumes: American households can afford more cars, consumer electronics devices, and large-screen TVs than their European counterparts. In pharma, it depends on regulation, and the same pharma product typically costs a whole lot more in the U.S. than in Europe. The fact that license fees are often not calculated as a percentage of revenues (which is, however, a common model) or regionally differentiated (which some patent pools promote, but some other pools and many licensors decline to do) is a matter of convenience and separate from the question of obtaining the leverage to force someone to enter into an agreement. ↩︎
  2. This comes from the assumption that the UPC does not have jurisdiction over patents granted by any patent office other than the EPO, an assumption that no litigation has even attempted to challenge in court so far (and maybe no one ever will in light of the statutory language). ↩︎
  3. My history with non-native languages is that I started to learn Latin in 5th grade, English only in 7th grade, then chose Ancient Greek over French (I didn’t know I’d later live in a French-speaking country) in 9th grade, and voluntarily Russian in 10th grade (only because my first choice, Mandarin, was not popular enough to find a critical mass of students in Western Munich). After 11th grade I dropped English because the school system had a special deal for “exotic” languages like Russian that afforded me more time to write computer books and articles. But it was toward the end and, even more so, after those five school years of English that I prioritized English. While I would have loved to learn French, Spanish, and Italian much earlier, I didn’t start with any of that in earnest until I scored 100% in the Test of English as a Foreign Language (TOEFL), which was a milestone I had, however, not defined beforehand. ↩︎
  4. The U.S.-China conflict will (unfortunately) not go away anytime soon. A democraticed, West-oriented Russia with a strong rule of law and true freedom of speech is also unlikely, but cannot be ruled out, in which case Poland might even want to explore that option. Russia does have natural resources. This scenario is, however, much less likely, also for historic reasons, than close U.S.-Polish ties. ↩︎
  5. In the short term, the economic implications would be bottom-line negative for Poland unless certain EU policies become even worse than they already are. And just like with Brexit, the EU would try to make a Plexit a failure. However, the relative impoverishment of Europe relative to the U.S. (next footnote) is already very significant and will reach dramatic proportions due to AGI and robotics. At some point, the U.S. will be able to offer the better deal, and the raw power to ensure that the EU could not afford to harm those who leave the EU in favor of greater U.S. alignment. ↩︎
  6. Joseph C. Sternberg, What Happens When Europeans Find Out How Poor They Are?, Wall Street Journal, April 30, 2026. ↩︎
  7. X post and LinkedIn post on Brussels riots in June 2026. ↩︎
  8. On the occasion of Paris Saint-Germain’s Champions League win, Paris and also other French cities were turned into war zones. On X, it is fully documented, including the claim that violent migrants “took Paris faster than the Germans in 1940”. Here’s also a LinkedIn video. ↩︎
  9. LinkedIn video 1, LinkedIn video 2, LinkedIn post where a local says it’s time to leave ↩︎
  10. Knife-related incidents have roughly tripled over the course of a decade and have lately been growing even faster: an increase of almost 40% in the first half of 2025 over the same period of 2024. The trend for rapes is similar, up 22% in 1H25 over 1H24. Catalonia (the region) has bigger knife and rape problems than, e.g., Madrid. ↩︎
  11. In 2007, I worked for Real Madrid on a competition issue (related to the selling mechanism for broadcasting rights). A former Real executive told me this year that last time he went to Barcelona, every single taxi driver was complaining over the problem with criminal migrants, and he heard from more than one local that people do not even dare to go out at night as a result of that. Also, an employee of a diplomatic representation in Monaco told me horrible stories about both violent and property crime in Barcelona. Here’s a LinkedIn video of what happened to a family in Barcelona in broad daylight. ↩︎
  12. LinkedIn video ↩︎
  13. It is not an objectively very safe city as explained in this February 2025 DailyMail article, but compared to Barcelona it is. ↩︎