The UPC’s caseload: What do the numbers tell us?

With the UPC just over one year old, we look at how the new system is being used. Which aspects of the system are proving popular and which aspects have not yet found favour?

Orders to preserve evidence (Saisie) and orders for inspection

Under Chapter 4 of the UPC Rules of Procedure (“RoP”) the Court may order the preservation of evidence or the inspection of products, equipment and premises. A patentee may apply for such an order before bringing an infringement action to obtain necessary evidence and may even request that the order be granted ex parte, i.e. without first hearing the party whose products, equipment or premises are to be inspected.

This provides a powerful tool for a patentee to obtain evidence and is based on the well-known French practice of saise-contrefaçons, the English-language RoP even using the French word “Saisie”. Such orders are also an established aspect of Italian and Belgian national practice.

The UPC has, however, seen only six applications for preserving evidence and one application for inspection. Four of those applications have been brought at the Milan Local Division, with one each at the Paris, Brussels and Munich Local Divisions. Patentees seeking such measures are choosing to use Local Divisions based in countries where such orders already form an established part of national practice.

This is particularly evident considering the overall numbers of infringement actions brought in each Local Division. At the Milan Local Division, six infringement actions and four applications for preserving evidence or inspection have been brought. By contrast, sixty-seven infringement actions have been brought at the Munich Local Division and yet there has been only one application for preserving evidence and no application for inspection at that same Local Division.

It will be interesting to see whether applications for such measures increase in popularity and whether they remain a speciality of particular Local Divisions.

More information on orders to preserve evidence and orders for inspection can be found here.

Patentees show a strong preference for German Local Divisions

135 of the 170 infringement actions have been brought at Local Divisions in Germany: 67 in Munich; 36 in Düsseldorf; 24 in Mannheim; 8 in Hamburg. That represents nearly 80% of all infringement actions.

The most popular non-German Local Division is Paris with 11 infringement actions, followed by Milan, The Hague and the Nordic-Baltic Regional Division with 6 infringement actions each. There are 2 infringement actions in Brussels, and 1 each in Helsinki, Copenhagen and Vienna.

There has not yet been any infringement action brought at the Local Division in Lisbon or Ljubljana.

Further legally qualified judges have been appointed in Munich and Mannheim to handle the high caseloads, with the Munich Local Division now having two separate panels staffed by different legally qualified judges:

• Panel 1
  • Mr Matthias Zigann
  • Mr Tobias Pichlmaier
• Panel 2
  • Ms Ulrike Voß
  • Mr Daniel Voß.

In addition, of eight further technically qualified judges who were recently appointed, six are German.

If the most popular Local Divisions begin to struggle with the demand from patentees, resulting in delays or less thorough judgements, that could cause patent holders to look to other Local Divisions instead.

Alternatively, if the most popular Local Divisions continue to meet patentee expectations, for example by adding further judges and panels in those Divisions, that could further consolidate their position as litigants’ preferred venues.

Over a longer period of time that could raise political questions as to how “European” the UPC really is.

Infringement actions more popular than revocation actions

A total of 170 infringement actions have been brought at the UPC. This compares to just 41 standalone actions for revocation. In other words, the Court is four times more popular with patentees looking to enforce their patents than with third parties looking to invalidate patents.

This discrepancy between infringement and revocation actions varies considerably between technical fields.

In IPC classes G (Physics) and H (Electricity) there have been considerably more infringement actions than revocation actions (27 infringement actions and only 2 revocation actions in class G; 70 infringement actions and only 11 revocation actions in class H). Whereas in IPC class A (Human necessities) there have been 35 infringement actions and 19 revocation actions.

Interestingly, in only 85 of the 170 infringement actions has a counterclaim for revocation been filed. The total number (192) of counterclaims for revocation is higher than this because of the filing of counterclaims by multiple defendants to a single infringement action.

English and German are the languages of choice

English and German are dominant as the language of proceedings, with 51% of first instance proceedings being in English and 43% in German. This is unsurprising given English is the international business language and the language of most granted European patents, and given the popularity of the German Local Divisions.

The ratio of cases in English compared to German might further increase in view of the Court’s willingness to change the language of proceedings to English where appropriate and given that more cases were filed in German at the start of the UPC when the German Local Divisions did not yet accept English as a language of proceedings.

Data source

The above figures have been pulled from the UPC’s statistics on its caseload that were published at the end of July 2024. They are available in full here.

This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic related to the Unified Patent Court then please contact upc@hlk-ip.com or your usual HLK adviser.