The UPC and its role in the global patent litigation ecosystem: a look ahead to 2026

The Düsseldorf Local Division has been responsible for many UPC firsts, straddling both a variety of legal principles and sectors.  These landmarks include the court’s first ex parte preliminary injunction in the myStromer v Revolt Zycling e-bike dispute, the UPC’s first substantive decision and permanent injunction in Kaldewei v Bette concerning bath tubs, the first decision on imminent infringement in a pharmaceutical dispute in Novartis v Celltrion concerning an omalizumab biosimilar, the first ruling on second medical use patents in Sanofi & Regeneron v Amgen in relation to the monoclonal antibody evolocumab, and the seminal ruling on long-arm jurisdiction in the Fujifilm v Kodak printing plate dispute, to name but a few.

This is why Düsseldorf, with known strengths in a variety of artistic, financial and industrial fields, and the distinguished Lido Malkasten restaurant, seemed like the perfect place for Pinsent Masons and JUVE Patent to host a dinner on 13 November 2025.  The event was attended by Pinsent Masons’ European patent litigation experts and a group of industry leaders with experience across a range of sectors including engineering, manufacturing, consumer goods, technology and chemicals.  It was hosted by JUVE Patent’s Mathieu Klos, who expertly guided the debate around how the continuing evolution of the UPC throughout 2025, along with the CJEU’s ruling in BSH Hausgeräte v Electrolux and the UPC’s rulings on long-arm jurisdiction, have impacted the global patent litigation ecosystem, and how the landscape may continue to evolve in 2026.

Overall, having reflected on the developments of the past twelve months, the attendees all agreed that the scope of courts of EU Member States, including the UPC, to issue long-arm, cross-border relief had been a key consideration for both patentees and challengers in 2025, and had caused all to reflect on litigation strategies with a different perspective.  However, all anticipate the New Year will bring, at least some, clarity as to the reach of the UPC’s long-arm jurisdiction, as well as the scope of BSH Hausgeräte.  Notably, the fact that the CJEU’s decision does not appear to be limited to EPC patents, raised questions as to the likelihood of EU national courts determining infringement of non-EPC patents, and how that might be viewed by patent judges in, for example, the US and China.  It was hoped that the tension caused by the issuance of interim licence declarations by the UK courts and anti-interim licence injunctions by the UPC may be starting to cool, bringing the focus of debates around SEP disputes back to whether the UPC will set global FRAND licence rates.  The steady increase in UPC filings in the pharmaceutical space in the second half of 2025 supports a wider increasing trust in the system and willingness to test new arguments.  Finally, the attendees welcomed the increase in filings outside Germany, notably before The Hague Local Division, with the increase in Court of Appeal rulings helping to establish the UPC as a true European institution, bringing together the best features of national patent litigation.

Cross-border relief by the UPC post-BSH Hausgeräte and Fujifilm

Given the headlines it has generated over the past 10 months, it was impossible to start the evening with any topic other than cross-border relief, and the group considered that this will remain at the top of agendas in 2026.

In BSH Hausgeräte, the CJEU clarified that courts of EU Member States can hear infringement cases against defendants domiciled in their country, even if the patent’s validity is disputed, and that the court can rule on the validity of foreign patents (including non-EU patents) on an inter partes basis to determine the infringement claim.  Throughout 2025, UPC local divisions have handed down multiple decisions on the court’s long-arm jurisdiction.  The Mannheim Local Division (LD) awarded relief, including damages and a permanent injunction, over the UK (Fujifilm v Kodak), shortly followed by The Hague LD (HL Display v Black Sheep Retail Products) determining validity on an inter partes basis, and awarding a permanent injunction over UPC countries, countries that have signed but not ratified the UPC Agreement (including Ireland), Lugano Convention countries (Switzerland, Norway and Liechtenstein) and the UK.  The UPC’s long-arm has also extended to provisional measures, with the Hamburg LD granting a preliminary injunction over Spain (Dyson v Dreame).   The group was unanimous in expecting the UPC to continue to exert its long arm throughout the next 12 months, with the Court of Appeal being expected to affirm these principles in due course.

Whether there are steps companies that carry out their commercial activities within Europe can take to mitigate the potential impact of such rulings were considered in the light of the Dyson v Dreame ruling.  In that case, the presence of an EU authorised representative – required for sales to be made in the EU – in a UPC country was deemed an anchor defendant, dragging a non-EU – in that case Hong Kong – based defendant into the UPC’s jurisdiction.  Again, further clarity from the Court of Appeal will be needed before proper consideration can be given to any steps that businesses may take in terms of corporate structures and locations to mitigate the impact of such determinations.

National courts: how far will they go?

The UPC’s ability to issue long-arm relief cannot, the group noted, be considered in a vacuum, with BSH Hausgeräte confirming the power of EU national courts to award cross-border remedies.  The attendees felt that the Munich Regional I Court’s recent decision, in the Bayer & Regeneron v Formycon & Klinge biosimilar aflibercept dispute, to award a cross-border preliminary injunction followed shortly by a cross-border permanent injunction, effective in certain EU Member States as well as Switzerland, a non-EU EPC country, was perhaps not surprising in principle (irrespective of the facts of that case) following BSH Hausgeräte.

Nevertheless, the decision raised some concerns as to how far the national courts might go in issuing such relief.  In particular, while the UPC’s jurisdiction is limited to EPC patents, there is a prospect that an EU national court will be prepared to determine infringement of non-EPC patents.  This has recently come to the fore with the assertion of European and US patents before the Munich Regional Court in Onestra v BMW.  The prospect of an EU court determining infringement of non-EPC patents leads to concerns over comity, and how judges in non-EPC jurisdictions, notably in the US, may respond.  That said, it was generally considered that such a ruling by a European court on non-EPC patents might be a necessary process, preferably during the course of 2026, to determine the true scope of the CJEU’s decision.

Interaction between the UPC and national courts

The potential response of judges outside UPC and EU territories to such rulings was discussed at length.  It was clear that all believed the interaction between the UPC and EU national courts, as well as non-EU national courts such as the UK and beyond, will undoubtedly be at the forefront of litigation strategies in 2026.

The discussion focussed on the perceived tension between the UK courts and the UPC and EU national courts in FRAND disputes.  This follows the granting of interim licence declarations by the UK courts (which grant an implementer a provisional licence to use SEPs which underpin their technology until the court determines the final FRAND compliant royalty rate), which may be seen as being contrary to comity and judicial sovereignty, and the responses of the UPC and EU national courts to these declarations.

The group considered it possible that the high-water mark may now have been reached, following Amazon v InterDigital.  In that dispute,  the UPC and Munich Regional Court granted InterDigital ex parte anti-interim licence injunctions (AILIs) to prevent Amazon from seeking interim licences or other measures in the UK.  This was swiftly followed by the UK High Court granting Amazon an ex parte anti-anti suit injunction (AASI) temporarily preventing InterDigital from seeking any measures restraining Amazon from pursuing final relief in the UK proceedings.  The judge in that case, Mr. Justice Meade, aimed to temper the decision by commenting that the AASI should not be seen as hostile to the foreign courts, and is rather aimed at preserving the position from any further applications by InterDigital.

While the recent decisions in the FRAND space have caused much controversy and concerns about comity and judicial sovereignty, the attendees’ general consensus was that tensions between the courts in this context are likely to calm over the coming months.   

A role for the PMAC?

The debate around comity in FRAND disputes segued nicely into a consideration of the role of alternative dispute resolution (ADR) in such disputes, and patent litigation more broadly.  In the UK, the role of ADR as a solution has been recently highlighted in various anti-suit injunction (ASI) and AILI orders.  For example, Nokia has recently argued before the UK High Court that its multi-jurisdictional FRAND disputes with Acer, Asus and Hisense should be resolved by arbitration.  ADR is also gaining traction within UPC proceedings, with judges frequently encouraging its use during interim conferences.  The value arbitration may offer, particularly in the context of FRAND disputes, has been further emphasised by the establishment of the UPC’s forthcoming Patent Mediation and Arbitration Centre (PMAC), scheduled to open in early 2026 with seats in Ljubljana and Lisbon.  There were some reservations over how much value patent litigants outside the FRAND space, being far more familiar with resolving disputes through the courts, would place on the PMAC, particularly given concerns over transparency and cost-effectiveness.  However, if the PMAC is able, over time, to demonstrate its role in effectively resolving disputes then some would not discount its use.

A victim of its own success?

Another point raised, which led to a lively debate, was the speed of UPC proceedings.  This, along with the fact that UPC proceedings are front-loaded with extensions only possible in limited circumstances, are seen as significant features of the court, and an effective means of applying pressure to defendants.

These features are expected to lead to an element of competitiveness between the UPC and national courts, particularly if the UPC can maintain the 12-14 month timeframe for issuing first instance decisions.  It is thought that national courts may well take steps to expedite national proceedings to reach decisions quicker than they have done previously.  This may potentially make both those courts, including the UK, more attractive to litigants (especially, with EU national courts having the added benefit of cross-border relief post- BSH Hausgeräte).  Indeed, the group considered whether the continuing success of the UPC, and increasing number of cases particularly before the German local divisions, might increase the timeframe in which the court is able to issue decisions.  Would this success inadvertently make the UPC less attractive, and perhaps shift the momentum back to the national courts?

The busyness of the UPC’s German Local Divisions is likely to remain a topic of interest in 2026.  This has been a constant throughout the court’s initial period, but there is starting to be some movement towards litigants issuing proceedings in non-German divisions, notably The Hague Local Division.  The group considered this a positive; after all, the UPC is a European institution designed to bring together the best of all national systems.  The UPC has also indicated an intention to increase the number of travelling judges, who may also be the judge-rapporteur, to increase their visibility and users’ trust in them, encouraging use of their respective Local Division.  Further, increasing engagement by sectors which have so far seen only a limited number of UPC cases, such as the pharmaceutical sector, along with a greater number of decisions by a range of divisions, and ultimately a substantial body of Court of Appeal case law, will help the UPC to harmonise its laws and practices providing certainty for litigants during 2026 and beyond.

Testing the waters?

Engagement by pharmaceutical companies in UPC litigation has, so far, been low.  The attendees noted that there are, however, signs that the tide is starting to turn.  Recent filings include Enata’s enforcement action against Pfizer concerning its COVID-19 antiviral, Paxlovid (nirmatrelvir and ritonavir combination), and the first enforcement of an SPC before the UPC by Merz against Viatris in relation to its MS drug Fampyra (fampridine), as well as Gilead’s revocation action against the Chinese Academy of Military Medical Sciences in respect of its patent for the Covid-19 treatment remdesivir.  Some thought that this perhaps shows a slight move away from the early cautious mindset of the sector towards one of actively trying to shape the court’s case law.

With that in mind, the group discussed examples of new arguments being tried before the UPC to test the court’s boundaries and shape case law.  One example is the Brussel Local Division’s recent decision to uphold its wide ranging ex parte orders to search Organon’s premises in the Netherlands and Belgium, and seize information relating to allegations of infringement by Organon’s pertuzumab biosimilar in Genentech & Hoffmann La Roche v Organon (Pinsent Masons acts for Organon).  The group acknowledged that the fact that they were granted without hearing the defendant indicates that such orders can be very powerful measures for patentees, placing considerable pressure on the recipient of such an order.  An increase in applications for such measures is expected in 2026, and their precise scope will be monitored with interest.

Conclusion

By the end of the evening, the experts all acknowledged that, while many businesses have still opted some, if not all, of their patents out of the UPC, it’s impact on the global stage cannot be underestimated.  The potential, as yet untested, scope of BSH Hausgeräte and the reach of the UPC’s long-arm will form part of global litigation strategies and will be monitored by businesses and practitioners both within and outside Europe, notably in the US and China.  Further clarity on this, and an increasing body of Court of Appeal case law throughout 2026 will continue to increase confidence in the system, but the UPC is not without competition, with a potential resurgence of national litigation remaining a future possibility.

If you would like to explore the opportunities or risks the UPC may bring to your business please contact the Pinsent Masons UPC team at sarah.taylor@pinsentmasons.com.