Context: The Unified Patent Court (UPC) provides a monthly caseload update on its website, and ip fray seeks to identify important trends. Last month, we highlighted particularly high growth in The Hague and Dusseldorf (November 5, 2024 ip fray article).
What’s new: The numbers show that the UPC is already, by far and away, the world’s most important jurisdiction for preliminary injunctions (PIs) over patents (or “provisional measures,” as they are called in the UPC). PI motions are growing at a faster rate than regular infringement complaints. The win rate of PI motions (around 40%) is very high compared to the United States and, historically, Germany. In November, the UPC received another five applications for provisional measures (vs. 13 new regular complaints). PIs over patents are rare in the U.S. unless one includes design patents, which are not technical and, therefore, are not considered “patents” in other places.
Direct impact: Whether this trend continues will also depend on the extent to which the UPC’s Court of Appeal (CoA) affirms PIs or at least allows their enforcement during the appellate proceedings. One famous case in which a PI was affirmed on appeal originated from Dusseldorf: Ortovox v. Mammut (September 27, 2024 ip fray article).
Wider ramifications: It would be difficult for the U.S. to make PIs over patents more widely available, given that even permanent injunctions (i.e., after a full trial) are relatively difficult to obtain in that jurisdiction.
Yesterday the UPC released its caseload figures as of the end of November 2024 (PDF).
There were no major surprises with respect to regular infringement complaints: a total of 13 (vs. 14 in October and 11 in September), with four each in the Munich and Mannheim Local Divisions (LDs), three in the Hamburg LD, and one each in the Paris LD and The Hague LD. That means approximately 85% of those complaints were filed in the German divisions (a high percentage, too high for a Europe-wide court system, but it was even higher in some other months).
The number of new PI motions – 5 – is not unprecedented either: there were as many in July. But there is a discernible trend:
In first half of the UPC’s second twelve-momth period of operation (June-November 2024), the court received 20 new PI motions, i.e., 77% of the total of the entire first year of operation. By way of comparison, 85 new regular infringement complaints filed during that six-month period amount to 63% of the total of the entire first year of operation. That means PI motions are growing at a significantly faster rate than regular infringement complaints.
The current estimate is that 40% of PI motions in the UPC succeed. Regular infringement complaints sport a higher win rate (approximately 60%), which is normal in any jurisdiction as patentees seeking a PI must make a very strong showing that they will prevail on the merits and satisfy the urgency requirement. Theoretically, the balance of hardships could also represent a higher hurdle, but it does not appear to play much of a role so far.
The sample is small so far, and it remains to be seen what happens at the CoA across a larger set of cases. But the UPC is clearly en vogue now among patentees seeking PIs.
Last year, a U.S. patent law firm sought to respond to what it called “UPC chatter” by shedding some light to access to patent injunctions in the U.S. (August 2, 2023 article by Nirav N. Desai of Sterne Kessler Goldstein & Fox). What it says about design patents is relevant because such patents do not exist in Europe (design rights have other names there), and the UPC does not have jurisdiction over them. But technical patents (more formally called “utility patents”) are the comparable category:
“From 2022-2023, U.S. courts have granted [in] 11 out of 93 utility patent cases a preliminary injunction, roughly 12%.”
That was a reference to a period of 18 or 19 months, over which the average monthly number of PI motions in the U.S. was apparently just about 5, like the current level of UPC filings. And an average of only about 0.6 U.S. patent PIs was granted per month during that period (in other words, one came down just about once every other month).
Historically, access to patent PIs was also very difficult in Germany. Patents had to be battle-tested, even with respect to a particluar invalidity theory advanced by the defendant. The April 2022 Phoenix v. Harting decision by the European Court of Justice (ECJ) (link to English version of judgment), which is also governing law for the UPC, stressed that PIs must be reasonably available over patents. The hurdle has since been lower in at least some German courts. But by now it looks like the UPC is simply the most attractive and fastest-growing patent PI jurisdiction in the world.
Last month’s new PI motions were filed in two venues: two in Hamburg and three in the Milan LD, which had previously received only one such motion (November 23, 2024 ip fray article).
PIs are a key “use case” for UPC litigants, and further growth appears likely, though the absolute numbers are small enough that there will be considerable variance on a month-by-month basis.