The Unified Patent Court (UPC): Unpacking the Latest Trends

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The Unified Patent Court (UPC) is an international legal framework established to handle patent disputes and provide a single, unified system for enforcing patents across multiple European countries. The new system came into effect on June 1, 2023, and a number of trends have emerged.

UPC Court Proceedings

As of the latest reports, a total of 52 cases are currently pending before the UPC. UPC also reported that 236 protective letters have been filed within one month. However, a persistent challenge has been data management, as some cases that have been reported are not visible in the Case Management System (CMS) and UPC case register. As an aside, MaxVal has been updating its UPC case list weekly since the launch of the UPC. 

Among the cases that have materialized, a pattern emerges: 35 infringement proceedings and 6 revocation proceedings have been filed thus far. These actions are reflected in the UPC’s case register. Additionally, 3 actions for preliminary measures have made their way into the CMS. The remaining cases are reportedly distributed across the local divisions in Milan, Munich, Düsseldorf, Vienna, and Helsinki. 

Taking a closer look at the geographical distribution of proceedings, approximately 35% originate from the Munich Local Court division. While Munich has taken an early lead with these proceedings, other German courts including Mannheim and Düsseldorf are gaining with 15% and 10% of cases, respectively. Unsurprisingly, most cases are filed in German (26), with English (14) being the second most common language of choice for filings.

Unitary Patent Requests and Opt-Out Dynamics

EPO’s official dashboard shows about 7,700 requests for unitary effect requests and 7,265 registrations as of August 28, 2023. Delving deeper into patent-related trends, the current pace indicates that patent owners are filing for unitary requests at a rate of 70-80 per day. 

A closer analysis of the country of origin reveals early adopters and their preferences. While patent owners from the United States lead in unitary patent requests, their numbers are still relatively low when compared to their European counterparts in relation to their eligible EP grants. Moreover, Asian patent owners from Japan, China, and South Korea exhibit a relatively lower uptake of unitary patents.

Diverse Sectors and Prominent Players

When it comes to sectors, healthcare, telecom, and software industries emerge as frontrunners in embracing unitary patents. Top assignees include Volvo, Vestas Wind Systems, L’Oreal, Philips, and Siemens.

Opt-Out Dynamics and Withdrawal Patterns

A critical aspect of the UPC’s establishment has been the opt-out process. During the sunrise period, a staggering 500,000 patents were opted out of the UPC’s jurisdiction. These opt-outs constitute 16% of all pending applications and a significant 40% of all in-force patents at the European Patent Office.

The rate of opt-outs continues to be dynamic, with approximately 300 patents being opted out daily. These opt-out rates reveal nuanced patterns based on the country of origin. Italy, the United Kingdom, the United States, the Netherlands, Austria, and Germany exhibit higher opt-out rates, while Japan, France, China, and South Korea lean towards lower opt-out rates.

The number of withdrawals following opt-out was at 412. We previously noted that withdrawal of opt-out could indicate imminent infringement action before the UPC. 

Implications and Future Prospects

As the Unified Patent Court evolves, these trends and statistics offer a lens into the current dynamics of the patent landscape in Europe. The diverse participation from various sectors, the geographical disparities in opt-out rates, and the rate of unitary patent requests all paint a picture of the evolving intellectual property ecosystem. As legal and technical minds come together to shape the course of patent litigation, the UPC’s influence on innovation and protection remains a subject of ongoing observation and analysis.

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