Opinion
This is the next opinion piece in a series of comments on the Unified Patent Court (UPC) docket distribution debate. The previous one addressed the language regime (May 30, 2026 ip fray article).
About a week ago, I saw a rumor on LinkedIn that the UPC’s Advisory Committee was going to recommend measures (possibly all the way up to an amendment to the Rules of Procedure (RoP)) to ensure that all UPC panels outline their preliminary views at the start of an oral hearing. I have since had two conversations with UPC litigators who believe that this would make certain local divisions (LDs) more attractive.
The Court of Appeal’s preliminary views resulted in an unfair advantage for Amazon at the Thursday hearing (initial hearing report: May 28, 2026 ip fray article). But, as discussed further below, that was a disconcerting irregularity which changes nothing about the fact that those introductory outlines are generally helpful. In regular scenarios where the court’s views are mixed, the benefits are more symmetrical.
There are different legal cultures in Europe. I remember the Helsinki LD’s provisional measures hearing in AIM v. Supponor in September 2023, of which I attended only the first couple of hours. Four judges put on a poker face, and all they provided at the start of the hearing was an abstract decision tree and the allocation of speaking time. From what I heard, it’s the same in Paris and Milan, while in The Hague and the German LDs, the parties get a clear indication of where some more convincing is needed.
It’s a typical European mistake to make decisions or uphold traditions in ignorance of international competition. Yes, there simply is competition for cases, and the German LDs and the Hague LD are way ahead. Even if the judges and practitioners in some places may believe that their tradition is sacrosanct or superior, it doesn’t help if cases go elsewhere, just like European “values” don’t matter when U.S. and Chinese companies dominate the technology markets of the future.
As a litigation watcher, I obviously prefer to get either an introductory outline or, like in the U.S., clear indications during the course of a hearing or trial. But I don’t decide where cases are filed. The ones who do make the decisions, and the ones advising them in major markets, want those introductory outlines for three reasons:
- They want to be able to focus their argument on what a case really hinges on, especially if they have yet to persuade the court on a key issue.
- It makes a decision more predictable. Sure, the court’s views can change, but in a high percentage of cases, the ruling is reasonably predictable and parties can then go for a settlement, prepare for an appeal, or make other tactical decisions such as filing parallel cases (be it in the UPC or elsewhere).
- It often keeps hearings shorter.
The effects are theoretically symmetrical, but particularly appealing to claimants at the stage of forum choice
Generally, the party that benefits most from an outline is the one that must make headway. If the outline is mixed, then either party learns what concerns on the court’s part it must address.
When plaintiffs decide where to file, this is a significant factor. They know that their adversary will get the same information in the end, but plaintiffs are the ones that must overcome all hurdles in order to win, and quite often the outcome turns on just one question (such as the construction of a single disputed claim term).
It’s in a plaintiff’s interest to build settlement pressure sooner rather than later. It’s not just about saving a month or two before the actual judgment comes down: an earlier settlement may influence licensing negotiations with other parties, and it can help avoid decisions in a given case or in a parallel one where, for instance, a patent might be invalidated.
Also, plaintiffs often have more arrows in their quiver and can bring additional cases if they see that they are not yet on the winning track.
Most plaintiffs rely strongly on advice from German patent litigators. There are some longstanding attorney-client relationships. That is a market reality. And German litigators are particularly turned off by the absence of an introductory outline.
The Munich I Regional Court is too busy now to hold two hearings per case, but when it became a key patent enforcement venue in the early 2010s, the availability of a first hearing (a few months into litigation) was definitely a success factor for pretty much the same reasons discussed above in connection with preliminary views at the outset of a hearing. UPC divisions can also attract more cases by giving better guidance at the interim conference.
Why the CoA’s May 28 outline in InterDigital v. Amazon further distorted the playing field, but represents an outlier
On Thursday, the CoA made it clear that the court’s competence to grant anti-antisuit injunctions (AASIs) was not in doubt, and the case on the merits was strong, but that in the panel’s preliminary view, the scope of the appealed injunction was narrow. Normally, that outline would have had pretty symmetrical effects: Amazon could have focused on the merits (as the court suggested) while InterDigital could have focused on scope. But the latter was not possible due to a gag order imposed by a UK court. InterDigital’s counsel had to say that due to a UK injunction, she could not say anything that would amount to seeking anything in the UPC that would affect “final relief” in the UK.
A U.S. appeals court like the Federal Circuit or Ninth Circuit would have taken issue with that situation. No court that respects itself can accept that a party is barred from simply arguing facts, laws, and policy. If an antisuit injunction prevents a party from bringing new claims, that’s just what those types of injunctions do. But the appealed Mannheim LD order incorporates by reference an ex parte injunction that predated the UK injunction. InterDigital should never have been restricted in its right to argue why its existing UPC injunction had a certain scope. And there would have been no shortage of arguments (May 29, 2026 ip fray article).
I don’t know whether the presiding judge or any other panel member said anything during the confidential part at the start, which lasted about an hour. I hope they did. If not, I’d be even more disappointed. But whether they said something or not: the fact that they allowed this to happen means that a party like Amazon can leverage judicial imperialism in a foreign country to compromise due process in the UPC with impunity.
There are courts in the world that would have adjourned the hearing in that situation. They would have given Amazon a deadline to remedy the situation (if necessary, by withdrawing its entire UK case), and would have continued the discussion on the basis of both parties being free to speak out. If Amazon had not solved the problem, it would at least have paid a price for it.
A hearing at which one party can argue that an injunction has a narrow scope while the other party’s hands are tied and lips are sealed (by a court order) is irreconcilable with due process in general and the fundamental right to be heard in particular. Any court has the duty to defend that right, except in totalitarian systems with sham courts. The UPC is bound by the EU Charter of Fundamental Rights, and the fundamental right to be heard was clearly violated on Thursday.
From my perspective, the scope-related part of the Thursday hearing was unworthy of a court that is (in many other ways) as great as the UPC. This was already the third UPC hearing in the same litigation where the problem arose. The difference is that the first two hearings were held by the Mannheim LD, which at least took issue with the situation and encouraged InterDigital to speak freely (which they still couldn’t), while it is unknown what the CoA decided to do about the problem.