The Unified Patent Court (UPC) is a European institutional success story. What the judges and their staff have put in place, starting with how they hit the ground running in mid-2023, deserves a hearty applause. But let’s be realistic about something else:
There is no evidence on the table for the UPC changing anything about the EU’s fundamental innovation gap, there won’t be any for at least a long time, and it may never come. That, to be clear, is not the UPC’s fault. Not in the slightest.
We’ve evaluated the last 100 infringement actions filed with the divisions of the Court of First Instance (CFI) of the UPC by the region of the claimant’s headquarters. The full list is further below in the paywalled section. At first sight, there is one number that looks good: 33 of the most recent 100 filings to have become discoverable in the public case registry were made by companies headquartered in a contracting member state (CMS) of the UPC, one more than the cases brought by U.S. companies and also more than all filings by Asian companies:
But:
- Non-profit Fraunhofer is by far the most active filer from UPCland with 6 of the 33 cases.
- Apart from two Nokia cases and one each from SAP, Philips, Bosch, Boeringer Ingelheim, BSH Hausgeräte and (privately held but “decacorn”) Celonis, there are no major plaintiffs from UPCland.
- Typical UPCland claimants, other than Fraunhofer, are companies like Julius Blum (two cases) and BTL Medizintechnik that hardly anyone has ever heard of.
- Even worse, a rather high percentage of those small company cases are in niche markets and target similarly small local rivals as opposed to defending their IP against larger non-European rivals.
- The only exceptions are found in the AI space; ParTec v. NVIDIA and KEEEX v. OpenAI et al.
By contrast, when the claimant is from the U.S. or Asia, it’s either a large player like a Broadcom/Avago, Huawei, or a deep-pocketed licensing firm like InterDigital.
The UPC has decided to raise its court fees (November 25, 2025 UPC news item), and that may have been necessary because the high-value cases are predominantly brought by companies from outside UPCland. It is hard to justify that taxpayers in contracting member states should pay for U.S. and Asian enforcement actions on European soil. If, however, the UPC becomes self-sustainable based on fees collected in high-value cases, and the entrance barrier to the UPC isn’t raised dramatically, foreign litigants might effectively subsidize lawsuits brought by the likes of Bode – Die Tür GmbH (which would translate as “Bode – The Door LLC”).
No one can blame the UPC for Europe’s missed decades. It was already clear decades ago that innovation-centric industries were going to take over an ever larger part of the total economy. But neither the EU nor its member states addressed any of the structural weaknesses that impeded entrepreneurship and confined European investments to low-risk low-return opportunities in niches. Bold bets in the U.S. and China paid off. As a result, Europe’s share of the global economy has plummeted, and ever more European companies and other assets such as real estate are acquired by those who are based in more innovative and/or resource-rich economies. Car wash and supermarket outlet managers in the U.S. earn more than most software developers in Europe. Europe is caught in a vicious IP cycle, which also comes with a major brain drain (including that some of the best European engineers, also in AI by the way, work for foreign companies that then own the IP).
Europe’s economic decline (due to lack of innovation) poses long-term threat to UPC’s growth
Only one of the top ten WiFi 7 standard-essential patent (SEP) holders is European: Ericsson (May 14, 2025 ip fray article). The following chart is about new-to-pipeline drugs and shows no European country among the top three locations of the headquarters and no EU company among the top five, with Europe even unable to compete with little South Korea:
[The Europeans] have driven out business, driven out investment, driven out innovation.
Jamie Dimon
CEO of J.P. Morgan
(December 8, 2025 India Times article)
Meanwhile, the European Commission tries hard to do further damage to whatever little is left of European innovation, and its response to foreign innovative strength and entrepreneurship is to raise concerns over AI-based customer chats in WhatsApp and the blue checkmark rules that X adopted under its majority shareholder Elon Musk, whose advocacy of free speech is inconvenient to governmental entities that are more interested in covering the failure of their economic and social policies.
The UPC has further growth potential in the years ahead, but Europe’s economic decline is unstoppable. At some point that will affect (ultimately even reverse) the UPC’s growth as other patent jurisdictions worldwide gain traction and the global share of the EU market keeps shrinking.
In the short term, the strongest competition that the UPC faces comes from the U.S., where the measures taken by United States Patent & Trademark Office (USPTO) Director John A. Squires (December 5, 2025 ip fray article) have objectively increased the commercial value of litigation-grade U.S. patents. The UPC still has some advantages to offer to litigants, relative to U.S. federal courts there are also some significant disadvantages, among them the extremely restrictive rules governing contingency fees (if the UPC allowed full-contingency litigation, that would make a major impact) and litigants’ as well as funders’ concerns over the UPC not being a lucrative damages jurisdiction. For now, it is too early to tell what will happen when actual damages determinations are made by the UPC, but European legal tradition makes “Texas-size” awards very unlikely.
Could the UPC create some kind of competitive advantage for local companies?
Frankly, while BSH is great for the EU patent litigation community, it actually makes it more desirable not to be based in the EU, though it may not help in cases where an anchor defendant from the same group can be identified.
There is obviously no benefit from being based in UPCland with a view to UPC litigation. Decisions aren’t more favorable. Even with respect to the affordability of security, it doesn’t matter because a company that is tight on cash will have to give security and a deep-pocketed one won’t care. Travel expenses are a negligible part of UPC litigation costs.
If anything, the Unitary Patent could be argued to be helpful, but that effect will be negligible. The Unitary Patent, too, is available to filers from anywhere on the planet. There may occasionally be cases where local players afford unitary protection who would in the past have registered in only one or two European Patent Organisation (EPOrg) contracting member states. But UPC litigation is very expensive, so in most cases the ones who couldn’t afford multi-country filings in the past and can now afford unitary protection also wouldn’t be able to pay for enforcement in the UPC.
Simply put, the UPC can’t solve all of Europe’s problems. It’s important to be honest about who benefits from it: primarily, the European patent litigation community.
List of most recent filings by HQ region
To Read The Full Story
Continue reading your article with a Membership