Sailing into calmer waters

A turbulent 2025 lies behind us, both in terms of patent law and geopolitics. US President Donald Trump’s first year back in office shook up the world order, leading to dramatic changes in political practice. Greenland, Venezuela, Taiwan: crises are popping up like whack-a-mole, while Russia’s war in Ukraine continues despite all efforts to bring peace.

Europe now finds itself in a tense situation. The economy is barely growing. Germany in particular fears sliding into recession. Europe’s heads of government and the EU Commission are trying to avoid being completely sidelined on the global geopolitical stage.

In patent law at least, things look different. Here, Europe is gaining ground with the successful Unified Patent Court. After just two and a half years, the court is now established. Whilst the UPC is attracting cases and experienced judges, national patent courts are reducing their capacities. No other court in the world can currently boast to have accumulated a similar concentration of experienced judges and judgments in such a short space of time.

Jockying for jurisdiction

The UPC has shaken up the global patent litigation market. This is evident in the rivalry between the UPC, German courts and the UK High Court for anti-interim-licence and anti-anti-suit injunctions. The UPC is trying to pull in cases, while the UK High Court must also remain attractive, especially given the dampening effect of Brexit on the UK economy. The SEP dispute between InterDigital and Amazon manifests a tangible competition between patent courts, say many observers.

FRAND-rate determination cases are very popular with implementers of mobile and streaming technology. The SEP clash between the courts on both sides of the Channel is set to continue: InterDigital’s battle with Amazon is far from over, and other patent holders have also launched new SEP cases. As the UPC becomes more successful, other courts — most notably the UK courts — will seek to protect their jurisdiction.

A transitional period

Experts predict that the rapid development of the UPC will now calm somewhat. The implementation of a new case management system has solved the most pressing problem. The court has also invested heavily in new judges. Now it is simply a question of gathering experience and establishing case law. This year, the Court of Appeal will decide on an unprecedented number of appeals and thus provide clarity on fundamental questions.

Over the next few months, the court will leave its adolescent years behind and grow into a smoothly functioning element in the global patent system. Major upheavals are not expected. On the contrary, patent experts are already beginning to wonder whether the transitional period, during which patent owners can opt their European patents out of the UPC’s jurisdiction, should be shortened. The transitional period officially lasts seven years, with the option to extend it to 14 years under the UPC Agreement. Given the court’s success, however, this is unlikely.

Also under the UPC Agreement, revisions may be made to the treaty after either seven years or 2,000 infringement cases. According to the UPC case search, the court had 446 infringement cases at the end of 2025, thus the first revision of the UPC Agreement could soon be on the horizon.

The pharma industry

The court will undoubtedly attract more cases. However, the level of confidence drug manufacturers have in the UPC will be key. Many other industries, especially in mobile communications, have long placed their trust in the court.

Last year, more mRNA patent owners from the life sciences sector warmed to the idea of filing lawsuits at the UPC. Traditional pharmaceutical manufacturers are still hesitant. The UPC’s decisions are currently too divergent. While the Court of Appeal awarded Boehringer Ingelheim a PI against Zentiva, for example, Sanofi suffered a defeat at first instance in its battle against generics over cancer drug cabazitaxel. The local division Munich revoked Sanofi’s patent.

In some disputes, however, it is not the new court but the EPO Boards of Appeal that tip the scales, as Biogen recently discovered when the Boards of Appeal revoked the dosage patent for MS drug Tecfidera.

How long is the arm of Europe?

Last year, the European courts received a strong tailwind from the CJEU’s decision in BSH Hausgeräte vs Electrolux. It revitalised cross-border practice in Europe and enabled the long-arm jurisdiction of the UPC. The CJEU’s decision was arguably the most important development of the past year and will occupy the global patent community for a long time to come.

Indeed, there are already proceedings in Europe concerning patents that were not validated on this continent. For example, BMW faces three infringement suits from Onesta at the Regional Court Munich concerning processor technology and two of the lawsuits are based on US patents. The NPE entered new territory for infringement actions with these claims. US courts have responded directly with anti-suit injunctions against the Munich cases.

FRAND dominates

Given the vast economic impact of licence agreements between SEP holders and implementers, the significant public interest in SEP cases is unlikely to wane in the coming months. The AILI battle between InterDigital and Amazon is not the only focus here. There is also the question of whether UPC judges will determine a FRAND rate for the first time. Both the local divisions in Paris and The Hague have received applications from the Sun Patent Trust and Ericsson, respectively.

In addition, efforts to achieve SEP regulation appear to be reviving in Brussels. Patent experts are wondering whether a court will refer important FRAND aspects to the CJEU for clarification.

Furthermore, the UPC’s Patent Mediation and Arbitration Centre (PMAC) could soon begin operations, as preparations for a launch in early 2026 are in full swing. SEP holders see the PMAC as an alternative forum for resolving FRAND disputes.

Breaking the German stranglehold

Additionally, the German Federal Court of Justice will hear the appeal in VoiceAge vs HMD on 27 January, meaning the highest German civil court will have another opportunity to rule on FRAND. The new Munich FRAND guidelines, which make the court attractive for such lawsuits, will also be put to the test.

The patent chambers at the Regional Court Munich and the UPC’s German divisions have seen strong development, thus strengthening Germany’s dominance in the European patent system. Whether other countries or UPC divisions can counter this in 2026, only time will tell.

The Dutch local division in The Hague is showing initial signs of success. It has recently made significant gains and is attracting cases concerning medical devices, mRNA patents and FRAND-rate determinations.

Market in flux

In addition to the many judges moving to the UPC, changing law firms is also very much in vogue. As the framework conditions for patent litigation in Europe are changing, many lawyers are uncertain about what this means for their business. Some are opting to jump ship in an attempt to strengthen their position for future patent litigation work.

This has opened the door to law firms that are not yet established in the European patent market. The growing importance of the UPC has led US law firms in particular to woo partners who are willing to switch. Many have been trying to set up shop in Europe for a long time, but only a few such as Kirkland & Ellis or Quinn Emanuel have managed to gain a footing in the top segment.

Meanwhile, the conditions for entering the European market have never been so favourable. However, the current chopping and changing among lawyers and patent attorneys will probably only last another six months. Any US law firms that do not manage to gain a toehold in Europe in that time may as well bury their European plans afterwards.