Three years ago, on 1 June 2023, the UPCA entered into force, marking the launch of what is arguably the most ambitious project in European judicial cooperation in recent decades: the Unified Patent Court.
Three years ago, on 1 June 2023, the UPC opened its doors, marking the launch of what is probably the most ambitious patent dispute resolution project globally. The UPC rapidly became a center of gravity in virtually all of the multijurisdictional patent litigation campaigns filed around the world since then. Its jurisdiction covers 18 EU Member states and through its long-arm jurisdiction according to the CJEU BSH v Electrolux decision even all of the meanwhile 40 EPC Member States and thus a market which is significantly larger than the U.S. market.
We at BARDEHLE PAGENBERG have been involved from the very beginning, we have been appearing in about 25% of all of the proceedings filed since then and we are deeply grateful for the opportunities this has created to contribute our share to the development of the system. Some exemplary landmark cases we have been involved in include:
The 10x Genomics v. NanoString (UPC_CFI_2/2023) case complex that was filed on the very first day. It rapidly became a landmark in the Court's early history. Notably, it arose in the Pharma & Life Sciences sector, an area widely expected to adopt a cautious, wait-and-see approach toward the new system. Instead, the case brought high-stakes biotech litigation to the UPC from the outset. As the UPC's first inter partes preliminary injunction proceedings, the case required the Court to address fundamental questions for the first time, including PI requirements, claim construction, inventive step and whether amended claims could be relied upon in PI proceedings. It also produced a series of procedural firsts: the first oral hearing before the UPC (Munich Local Division), the first inter partes PI to be granted, and the first hearing before the Court of Appeal.
Philips v. Belkin (UPC_CFI_390/2023), also filed on the first day. It was the first SEP-case (though the defendants did not raise a FRAND defense) and the first case on the merits that went through both instances of the UPC. In substance, the decisions issued in first instance and by the Court of Appeal clarified several important questions, such as the liability of directors for patent infringements by their companies, the proportionality of recall and destruction claims as well as the competence of the UPC in light of parallel national proceedings. Consequently, the case received widespread attention and was honored as “Impact Case of the Year 2026” by Managing IP.
Dolby v. Beko (UPC_CFI_135/2024; UPC_CFI_477/2024). It was the first case in which the Local Division Düsseldorf issued a decision on a FRAND defense. The Local Division applied the same principles that had already been set forth in Panasonic v. Oppo and Huawei v. NetGear by the local divisions in Mannheim and Munich. In substance, the Court dismissed the FRAND defense because defendants had failed to engage in good faith negotiations and were thus found to be unwilling. Given the shortcomings in the defendants’ conduct, the Court did not have to decide the highly relevant and still open question, whether the owner of a patent that conveys market dominance, but for which no FRAND declaration has been issued (because the patent owner was not involved in the standard-setting), is subject to the FRAND obligations as set forth in Huawei v. ZTE.
The litigation complex Amgen v. Sanofi/Regeneron (UPC_CFI_14/2023; UPC_CFI_1/2023; UPC_CFI_505/2023). It included several landmark decisions:
- After Amgen lodged its infringement complaint before the Local Division Munich on Day 1 of the UPC and the counterclaim for revocation was subsequently bifurcated and combined with the standalone revocation case before the Central Division Munich, Amgen obtained a decision from the Court of Appeal which overturned the first-instance decision of the Central Division. In substance, the Court of Appeal fully maintained the validity of the patent-in-suit and issued a landmark decision, providing detailed headnotes on how to assess inventive step, sufficiency, added matter, and claim construction under the UPC framework. The case was recognized as “Europe Impact Case of the Year 2026” by Managing IP.
- Also worthy of highlighting is the landmark decision of the Local Division Düsseldorf in Sanofi/Regeneron v. Amgen setting forth, for the first time, requirements and factors for the assessment of infringement of second medical use claims. The decision was eagerly awaited by practitioners, as case law in the member states is scarce. The Local Division Düsseldorf did not simply transfer national liability concepts to the UPC but chose to develop its own multifactorial standard of liability for the infringement of second medical use claims. Based on this standard, Amgen was able to achieve a complete dismissal of Sanofi/Regeneron’s infringement action.
Alexion Pharmaceuticals v. Amgen (UPC_CFI_124/2024). The UPC Local Division Hamburg rejected Alexion’s application for a preliminary injunction against the sale of Amgen’s biosimilar BEKEMV, thereby issuing important guidelines that the UPC must be convinced of the validity of a patent in suit with a “sufficient degree of certainty” and that a decision on provisional measures cannot be based solely on the UPC's view of the validity of the patent in suit, but must also consider the likelihood that the EPO will revoke the patent in parallel opposition proceedings. The Court of Appeal upheld the decision and additionally elaborated on the boundaries for the correction of alleged inaccuracies in a patent claim by means of claim interpretation, and that statements by the applicant during the grant proceedings, and in particular the TBA’s endorsement thereof, can be seen as an indication of the view of the person skilled in the art at the filing date. The other panel of the Court of Appeal eventually developed a strict benchmark that applies to applications for rehearing cases because of alleged procedural defects. The case was recognized as “Europe Impact Case of the Year 2025” by Managing IP.
Ballinno v. UEFA/Kinexon (UPC_CFI_151/2024). A case particularly close to some of our hearts at BARDEHLE PAGENBERG: helping to ensure that the 2024 European Championships in Germany could proceed without patent litigation stealing the show. Just two months before kickoff, Ballinno sought a preliminary injunction based on an offside-detection patent to block the Video Assistant Referee (VAR) system at Euro 2024. The application was rejected by the Hamburg local division in time for the tournament to proceed. On the legal side, the decision clarified key questions on urgency: urgency under Rule 211.4 RoP is to be assessed on a case-by-case basis rather than by a rigid “one-month” rule, and applicants must file complete and persuasive evidence from the outset, as courts will not invite parties to cure evidentiary gaps mid-proceedings.
Let’s now turn to the current state of play in terms of statistical data. The reported figures represent a complete census of all available decisions. Given the still small number of decisions, particularly at divisional level and for the Court of Appeal, these figures are purely descriptive in nature. The population sizes are in many instances insufficient to support reliable inferential analysis or meaningful generalization.
