The UPC’s role in global patent litigation: A closer look at its strategic use

On June 6, 2025, BARDEHLE PAGENBERG and JUVE PATENT jointly celebrated the second anniversary of the UPC in Düsseldorf. This year’s event addressed the role of the UPC in global patent litigation and the strategic use of the UPC both from a claimant’s and a defendant’s perspective, with a focus on UPC invalidity rates.

At the beginning, the former presiding judge of the German Federal Court of Justice Prof. Dr. Peter Meier-Beck, as keynote speaker, addressed the UPC’s assessment of obviousness. He provided a comprehensive overview of the case law to date from the Court of Appeal and the Local Divisions of the UPC. You can find his keynote speech here.

In light of continuously increasing case numbers, e.g., 320 infringement actions in year two compared to 134 infringement actions in year one of the UPC – which is tantamount to a growth rate of close to 40% – the UPC undoubtedly has already become a major player in the global competition among patent litigation systems, providing new options for both patentees and defendants. The in-house experts and panelists of this year’s event – Ceren Pala-Okat (Philips), Jeremy Whitley (Honeywell), Craig Burnett (Dolby), Armin Schwitulla (Nokia), Dr. Thomas Dreiser (Huawei), Dr. Anne Julia Meinel (Roche Diagnostics), Alexander Haertel (Deutsche Telekom) – shared the view that UPC proceedings present many rewards for patent owners but are at the same time also challenging. The challenges arise from the front-loaded nature of the proceedings which require in-depth preparation of UPC cases. So, three principles of successful UPC litigation are: “prepare, prepare, and prepare”. These challenges mean that larger in-house teams are required for the UPC proceedings due to a significant increase in workload in light of the front-loaded nature of the UPC.

From a claimant’s perspective, UPC proceedings have one key advantage over national litigation, namely the territorial scope of UPC decisions which potentially entail an injunction for all 18 UPC Member States and thus an economic area with a GDP at eye level with the U.S. If the defendant is sued at its corporate seat and provided that such seat is a UPC Member State, the reach of a UPC decision may even be much broader and cover up to the 39 Member States of the European Patent Convention due to the recent decision dated 25 February 2025 of the Court of Justice of the European Union (CJEU) in the matter BSH / Electrolux (C 339/22). Based on such CJEU case law, the UPC has now issued its first injunctions covering the U.K. (Local Division Mannheim, case ID: UPC_CFI_365/2023). However, for the time being this decision is more the outlier rather than the rule. Pursuant to the voices from the industry, the stakes are oftentimes too high for including the U.K. in a UPC lawsuit. This is first of all due to the fact that such a UPC offensive move including the U.K. will in many cases trigger a reaction in the UK in the form of a U.K. nullity action. Insofar it is fair to state that the costs of UK litigation still remain higher than for UPC litigation.

In sum, the geographic reach of UPC decisions is considered the most important advantage of the UPC. However, speed, costs, and quality of the decisions are also important. Insofar, all UPC stakeholders agree that the UPC delivers. Also, the overall success rates for claimants before the Court of First Instance which amount to slightly more than 50% in actions on the merits appear balanced (even though these success rates are preliminary in light of the fact that the UPC Court of Appeal may still arrive at different conclusions than the Court of First Instance).

However, national courts remain important due to the predictability and might be even more attractive in view of the CJEU’s decision BSH/Electrolux. Thus, building up patent portfolios that include national patents in addition to European and/or Unitary patents is paramount (particularly in light of the fact that the transitional period will likely expire in less than five years, making the UPC the only court where European Patents are then enforceable).

When turning to the “risks” of UPC litigation, the following picture emerges: first of all, from a defendant’s perspective, the UPC offers new possibilities to challenge the validity of patents – in parallel to already existing attacks before the EPO and national courts. These new options can significantly impact enforcement campaigns and entail validity, cost, and liability risks (in situations where a non-final injunction is enforced and the patent-in-suit is later on invalidated).

A significant risk for patentees lies in the possibility of combining a central revocation action, a counterclaim for revocation, national revocation proceedings (for European bundle patents), and opposition proceedings before the EPO. But is it advisable to raise multiple validity challenges in parallel from a defendant’s perspective? In this regard, the following statistics offer helpful guidance even though the sample rate is, for the time being and as of May 31, 2025, still low.

• The chances for the patent owner to defend the patent with the scope as granted are significantly lower before the Central Division for central revocation actions (25%) than for counterclaims for revocation before the Local Divisions (53%).

• Even more successful are attacks on patents in EPO oppositions or German national revocation proceedings, where only 21% (EPO) or 14% (Germany) of the patents are maintained as granted in first-instance proceedings.

• Before the UPC, only 58% of all (partial and full) revocations were based on lack of patentability, and 38% on added subject-matter, whereas in German national revocation proceedings, 87% of all (partial and full) revocations were based on lack of patentability, and only 12% on added subject-matter.

Please download all slides here.

Based on these statistics, it is good and established practice to bring parallel EPO opposition proceedings in addition to a UPC counterclaim for revocation in cases where the opposition period is still open, in particular where added subject-matter attacks are to be made. However, despite the relatively low success rate of counterclaims for revocation, in-house attorneys remain skeptical about the value of bringing an additional central revocation action or a national revocation action. Many are of the opinion that a central revocation action makes most sense if it was filed before an infringement action has been initiated, or if new prior art is discovered after the filing of the counterclaim for revocation, where it is uncertain whether the new references would still be admitted into the counterclaim proceedings. Alexander Haertel (Deutsche Telekom) voiced the assumption that the higher revocation rate in central revocation actions cannot be attributed to a greater appetite of the Central Division to revoke patents, but to the fact that in central revocation actions, the party who attacks the patent is in the driver’s seat (and thus has ample time to prepare its attack).

Summarizing, the UPC strikes a fair balance between risks and rewards and has therefore rightfully secured its place as a key venue in the global patent litigation landscape.