A year that will make all the difference

It seems inevitable that 2025 will not be a pleasant year. US President-elect Donald Trump laying claim to Greenland and the Panama Canal only serves to emphasise this. As if there were not enough absurdities and challenges on our planet.

It is precisely such turmoil that companies abhor. Stable framework conditions and predictability are important factors for business development, and this is especially true for the invention and protection of new technologies.

The new Unified Patent Court has recently shaken up the global patent system. It has become an established and integral part. But at less than two years old, it needs more time and politically reliable conditions to stabilise.

More pharma cases for the UPC

The UPC already has everything a functioning court needs. Good judges, many cases, well-developed case law and, above all, technological breadth. Nevertheless, the court still lacks pharmaceutical cases. Despite some individual cases, such as the lawsuit Accord recently filed against Novartis at the Milan central division, the industry is still hesitant.

Initial decisions in main proceedings could help alleviate this. In this respect, the new year will be decisive as the first early infringement suits from pharmaceutical companies will be heard and probably decided this year.

On 25 February, for example, Düsseldorf local division will hear Sanofi’s infringement claim against Amgen in the saga over cholesterol-lowering drugs Repatha and Praluent. If the two companies do not settle, the UPC can be expected to issue its first judgment on the merits in a pharmaceutical dispute.

If the UPC remains true to its strict timeline, the local division is also likely to hear Sanofi’s infringement claims against various generic manufacturers over cancer drug cabazitaxel this year. These judgments ought to provide more clarity for the pharmaceutical industry in 2025.

A CMS overhaul

In 2024 the UPC also announced a major project: a new case management system. The court is developing the system together with the European Patent Office. According to the court’s announcement, both organisations are “fully committed to fast track the development work and aim at having a system that can be operational by mid-2025”.

The current CMS does not work smoothly, is overly complicated and has caused a good deal of resentment among judges and users. The new system must therefore be a good one. Only a well-functioning system will ensure greater trust and predictability for users.

Clarity on jurisdiction

Meanwhile, the European Court of Justice is becoming increasingly important in European patent law. Last year, there were requests in UPC proceedings to submit legal issues to the CJEU for clarification. So far, however, the UPC judges have felt confident enough not to grant these requests and have decided such cases without the guidance of the judges in Luxembourg.

Nevertheless, the court will probably make an important decision this year on what jurisdiction European courts have over European patents. The dispute between the German company BSH Hausgeräte and the Swedish company Electrolux is currently in its second round at the CJEU. There will no longer be a hearing, the court must only hand down its ruling.

The Grand Chamber must decide whether a Swedish court can rule on the parts of a European patent that have not been validated for Sweden when it comes to invalidity arguments. The court’s decision could impact cross-border patent proceedings in Europe. If the CJEU agrees with Advocate General Nicholas Emiliou’s opinion, European courts would have greater competence in patent infringement proceedings. This could significantly increase competition between patent courts in Europe.

FRAND discussion continues

FRAND was already on everyone’s lips in 2024. In particular, the decision of the UK Court of Appeal to oblige Panasonic to grant an interim licence in the dispute with Xiaomi underpinned London’s importance as the main venue for global FRAND-rate setting. Companies are now submitting applications for a global FRAND-rate determination to the UK High Court as standard.

However, the court will next decide on the FRAND rate in connection with a patent pool. Observers expect the UK Court of Appeal to deliver its judgment in the case brought by Tesla against Avanci and InterDigital in just a few days’ time, although the court has not set an exact date.

Tesla is seeking a FRAND determination, claiming that the terms of the Avanci licence are not FRAND. The High Court had dismissed the claim. Now the Court of Appeal must first decide whether the UK courts have jurisdiction at all.

On 6 February, the Higher Regional Court Munich will deliver its judgment in VoiceAge vs HMD over speech-coding standard EVS. The EU Commission set out its FRAND view in an amicus brief. The Higher Regional Court Munich countered with a new approach to the willingness of licensees. The decision will therefore have an impact on German and European SEP law. A referral to the CJEU is also possible, though rather unlikely.

The Commission’s SEP regulation

Meanwhile, the EU Commission’s proposal for a new set of regulations has attracted little attention at the European Council lately. The proposal was hotly debated in 2023 and 2024, with many companies up in arms. Nevertheless, the EU Parliament voted in favour of the EU proposal. Now the European Council needs to vote on it. However, the Hungarian Council Presidency recently had no interest in pushing it forward.

This could now change since Poland took over the leadership of the European Council at the beginning of 2025. Opponents and supporters of the regulation are already positioning themselves to exert influence.

Patent firms look inwards

Economic stability is important for companies’ business. But their advisors also need reliability. Therefore, in politically turbulent times, patent attorneys and patent litigators are likely to be more concerned about the development of their own business.

Most national courts in Europe have seen fewer cases of late. At the UPC, however, cases are steadily increasing. As of January there were 635 in total. This shift is politically intentional. The question that concerns patent professionals, however, is whether the new UPC cases are sufficient to keep their utilisation rates high.

It is widely believed that in economically uncertain times companies are more likely to enforce their patents against competitors. But even this may no longer hold water. It is becoming increasingly clear that the conditions that could be relied upon in the past might no longer apply.