Klaus Grabinski: “Economic logic suggests the UPC will continue to grow”

JUVE Patent: Mr Grabinski, you have now been President of the Unified Patent Court for over three years – initially during the preparatory phase and, since 1 June 2023, of the operational court. How satisfied are you with the current developement?

Klaus Grabinski: I’m very pleased with how it has developed. It has undoubtedly been a challenging time, but also exciting and stimulating. It’s particularly gratifying that the court has been well received by users. Around 1,100 cases have been filed so far, and case numbers in 2025 have risen again compared to 2024. There are also an increasing number of appeals. All of this shows that the UPC has become the European patent court and has got off to a good start.

What else makes you proud?

“The UPC has become the European patent court”

The fear that the UPC would only be a court for the major players has not materialised. On the contrary, not only large companies use the court but also small, innovative enterprises. It’s also interesting to note that the cases cover all areas of technology, everything from electrical engineering and mechanics to medical technology and pharmaceuticals. There is no singular focus.

From the users’ perspective, not everything has run smoothly. For example, there is criticism of the dominance of the German divisions. Does this also worry the court’s management?

I would like to see a more balanced distribution of cases across the local divisions so that the court becomes even more European. We need to work on that. The court has already taken measures. For instance, the third so-called ‘itinerant judge’ is now more frequently assigned the role of rapporteur and is therefore more visible. But our options are limited – ultimately, it is the claimant who decides which local division their case goes to.

“I would like to see a more balanced distribution of cases”

In mid-March, Peter Tochtermann, presiding judge of the Mannheim local division and member of the UPC Presidium, called on those present at a hearing to file more cases with the smaller UPC divisions. What other steps can the court take to improve the distribution of cases?

Short of amending the UPC Agreement, which is not expected before the end of the transitional period of seven years, there is little that can be done. The system is currently structured in such a way that the claimant determines where to file their claim. Whether there are further ways to influence the distribution remains to be seen. Discussions on this have only just begun. At present, the ball is primarily in the court of the claimants and their lawyers.

The previous case management system faced significant criticism, prompting the UPC to swiftly introduce a new CMS last September. How has the transition been from the court’s perspective?

The case management system is absolutely crucial, as the UPC defines itself as an electronic court. It’s worth noting that the Presidium took the decision to replace the system after a relatively short time and did so with great success, and to the great satisfaction of users.

“The UPC defines itself as an electronic court”

How is cooperation with the European Patent Office progressing, given its role in developing the new version?

It’s a logical continuation of the cooperation that is already in place regarding the maintenance of the register and parallel proceedings within the UPC package. The EPO had early positive experiences with its electronic system and developed basic electronic modules that are also useful for the UPC. Only minor adjustments were required to meet the specific requirements of the UPC procedure. The switchover last autumn took place in two stages, very seamlessly, without complications and without any significant data loss.

What factors influenced the initial decision not to collaborate with the EPO from the start?

That decision was taken years before the UPC was launched, under the responsibility of the Preparatory Committee at the time. And that was the right approach, as such a development takes a long time. The Presidium then adopted the system for the UPC in November 2022.

In retrospect, one might say that this approach may have been misguided – and perhaps more costly than anticipated?

“The old system, with its educational approach, also had advantages”

I wouldn’t put it quite like that. You can learn a great deal from experience. Many institutions have gone through such processes and gained valuable experience. The old system, with its educational approach, also had advantages. It sought to map out the individual procedural aspects. As a result, everyone who learned how to use it learnt a great deal and can now apply that knowledge all the better in the new system. If one wishes to view it positively, the exercise was also an investment in the future.

How much has the transition to the new system cost taxpayers?

The UPC is funded less by the taxpayer and primarily by the users. I can’t give you any specific figures. Suffice it to say: there is an annual budget for the CMS, and we have always stayed within the allocated funds.

Turning to the UPC’s next major milestone – the launch of the PMAC – how far have preparations progressed?

Aleš Zalar, PMAC director, recently told me that the PMAC is ready to officially open its doors at the start of June. There are even plans to make certain services available to users before then.

What kind of services?

“The PMAC will offer mediation before the official opening”

The PMAC is to offer mediation proceedings even before the official opening, provided the necessary legal conditions are met. Anyone interested in this should therefore keep an eye on the PMAC website over the coming weeks.

What are the PMAC’s specific areas of expertise?

It offers three different procedures: arbitration, mediation and expert opinions. These procedures are not limited to European or Unitary patents. The parties can also seek solutions to global patent disputes.

Another key advantage of arbitration over court proceedings is discretion. Whilst the UPC also offers options for keeping facts confidential, these are even more extensive in arbitration. This can be very attractive to users.

What legal issues will the Court of Appeal deal with over the next two years?

“We judges cannot choose the issues”

Our core task is to develop case law and foster trust and predictability. We are well on the way to achieving this. The Court of Appeal has now ruled not only on procedural matters but also on many substantive issues, such as the interpretation of patent claims, inventive step, added matter, and the feasibility of inventions. Case law will continue to evolve, and the Court of Appeal will certainly, in the not-too-distant future, also hand down its first decisions on issues of patent equivalence, liability law, and the calculation of damages. But what the Court of Appeal will deal with depends on the cases brought. We judges cannot choose the issues.

Which legal topic would appeal to you most?

I leave that to fate. We take things as they come.

The UPC’s long-arm jurisdiction is currently a hot topic. Your panel has decided to refer the matter to the CJEU for the first time. What were the reasons for this?

Like any other national court of an EU Member State, the UPC, as a court of a number of EU Member States, is obliged to refer questions regarding the interpretation of EU law to the CJEU if three criteria are met: the question must be relevant to the decision, it must be unclear, and it must not have been clarified by CJEU case law.

The appeals court has already ruled on cases concerning international jurisdiction under the Brussels I Regulation and, in doing so, considered the interpretation of the Regulation to be sufficiently clarified. In the case of Dyson vs Dreame, it encountered for the first time a scenario which it considered not yet sufficiently clarified: Among other things, the issue was whether a company established in a UPC member state, and acting as an authorised representative for a company not established in the EU, justifies the UPC’s international jurisdiction for the infringement suit against the company in the non-UPC member state on the grounds of a close connection. It now remains to be seen how the CJEU will answer this question.

Long-arm jurisdiction has led to an escalation in competition between continental European courts and UK courts, particularly in the InterDigital vs Amazon dispute. What is your view on this?

“This is a mutual balancing of positions rather than an escalation”

I would tend to describe this as a mutual balancing of positions rather than an escalation. The issue is that patents are territorial rights. In the case of standard-essential patents, this territorial limitation can be overridden by the fact that the standards often apply globally. In parallel proceedings before courts of different jurisdictions, which often also involve global licences, one set of proceedings may affect the other. This is the area in which the case law of the UK High Court and the UPC operates. It remains to be seen how the two will adapt to one another. Jurisdiction should be clarified without conflict.

There is also increasing competition between courts in the recruitment of judges. The UPC has attracted many national judges and representatives of the national courts are concerned. How will the UPC recruit new judges in future?

The system is laid down in the Agreement and the Statute. The Advisory and Administrative Committees are responsible for this. Anyone with the necessary qualifications is free to apply – national judges, but also solicitors and patent attorneys. The initiative therefore lies primarily with the candidates.

Given the international nature of the work at the UPC and the higher pay, those who in charge of recruiting at the national courts might argue that the competition for the best talent is being fought on an uneven playing field.

“The rise in cases is likely to level off and thus the need for new judges”

I would wait and see how things develop. After all, at the UPC, the demand depends on the caseload. We had a turbulent start. The rise in new cases is likely to gradually level off. The need for new judges would then decrease, and the judges we have recently appointed are likely to remain at the UPC for many years to come. That should give the national courts sufficient time to replenish their ranks. Especially since not all experienced judges are interested in the UPC.

The budget for 2026 allows for the appointment of additional judges. Where do you expect further reinforcements?

The decision will be made by the two relevant committees, meaning the Advisory and the Administrative Committee. But I can certainly envisage some further reinforcement of the UPC.

Will you be assessing where there is still a need for reinforcement?

Of course. You can look at how many cases are in each division and how many judges are already there. Another criterion could be a balanced distribution. But I don’t want to pre-empt the decisions of the committees.

A third panel in Munich would be the first thing that springs to my mind.

Only time will tell.

The UPC system is designed to cover a significantly larger territory. Five more EU Member States have signed the Agreement but not yet ratified it. When will the UPC expand again?

EU Member States often integrate at two different speeds – as with the euro, for instance, or Schengen. The same applies to the UPC. Future developments depend on the overall political situation in the remaining Member States. What is important here is this: in his report on boosting the competitiveness of European Union Member States, Mario Draghi explicitly mentioned the Unified Patent Court and the Unitary patent. Economic logic certainly suggests that the UPC will continue to grow beyond the current 18 UPC Member States.

What signals are you receiving from Spain and Poland?

“The UPC is not the top priority in Spain and Poland”

Unfortunately, it seems to me that the UPC is not the top priority there. Of course, I would be delighted if Spain or Poland decided to join.

What is your view on the United Kingdom’s participation, should the British government ever decide to reverse course?

I very much regretted that, following the Brexit vote, the UK initially ratified the Agreement but then withdrew. Incidentally, the UK remains a signatory to the UPC Agreement. However, whether subsequent participation is possible would have to be examined in light of CJEU Opinion 1/2009. One thing is clear: anyone participating in the UPC must submit to the CJEU’s interpretative authority as regards EU law.

I gather from what you say that the door is not entirely closed on the UPC’s side should the British government come knocking again?

I can only speak for myself. I greatly enjoyed working with my UK colleagues on the drafting of the Rules of Procedure. From that perspective, I would welcome UK judges being able to participate in the UPC.