Examining Developments and Trends at the Unified Patent Court in 2025

It’s been a year of significant decisions from the Unified Patent Court (UPC), from both the first instance Local Divisions (LDs) and Central Division (CD) and the Court of Appeal (CoA). Jurisdiction and, as more appellate decisions become available, the substantive law on patent validity and infringement, have come into focus. Decisions relating to enforcement also provide helpful indications for the future.

Overall Outcomes

After 2.5 years of operation, the statistics on outcomes begin to be more meaningful. Based on our review of data published by the UPC, since the UPC began operation on June 1, 2023, of cases in which at least a first instance decision was given:

• Just over 50% of infringement actions have resulted in the patent being declared valid (as granted or as amended) and infringed. Around 25% have been found not infringed and 25% have been found invalid
• For revocation-only actions, 36% of patents in suit have been revoked, with the remainder found valid as granted or as amended during the proceedings
• Just under 65% of preliminary injunction applications have been granted at first instance. This excludes applications for preservation of evidence/inspection which been almost universally granted
• Looking at all appellate decisions (the majority of which have been procedural or on preliminary or protective measures), just over 25% of first instance decisions have been overturned. Of the six decisions on the merits on which the Court of Appeal has ruled, two first instance decisions have been overturned (33%)

Just over 50% of infringement claims and just over 35% of revocation claims have settled before a first instance decision has been issued.

The Long Arms of the UPC

The February 2025 decision of the Court of Justice of the European Union in BSH v Electrolux confirmed that a court in the EU may accept jurisdiction over a claim for infringement of foreign patents based on the defendant’s domicile, even if invalidity defenses are raised.

If a validity defense is raised in respect of a claim founded on a foreign patent registered in another EU state, the infringement court cannot rule on validity. However, if the court considers it justified, in particular where it takes the view that there is a reasonable, non-negligible possibility of that patent being declared invalid by the court of that other EU state with jurisdiction over validity, it may stay the proceedings. For a foreign patent registered in a non-EU country, the court has jurisdiction to rule on invalidity inter partes.

The UPC has interpreted BSH v. Electrolux as supporting its authority to issue cross-border injunctions, including for countries not participating in the UPC. To date, these include the UK and Spain. This provides the opportunity for patentees to seek broad pan-European relief, including for non-UPC countries, by targeting defendants domiciled within the UPC territory – presuming that they have a broadly validated patent portfolio.

More recently, in Hurom v NEC, the Mannheim LD accepted jurisdiction for infringement claims based on foreign patents where the jurisdiction over the defendant was based not on domicile but on the place where the infringement occurred. This has been followed also by the Paris LD in an infringement suit brought by Keeex.

Substantive Patentability

Two CoA decisions released the same day, on November 25, 2025, have clarified the UPC’s approach to inventive step and insufficiency of disclosure, among other things. These decisions are likely to be cited heavily in coming months.

In Amgen v Sanofi and Meril v Edwards, the CoA set out principles for assessing inventive step. These principles have some similarity with but are different from the well-known ‘problem-solution approach’ used in the EPO (and in some but not all European national courts). The UPC CoA’s approach involves identifying an objective problem from the patent and considering whether the skilled person, seeking to solve the objective problem, would arrive at the claimed solution if starting from a “realistic starting point” – meaning one that is of interest to a skilled person wishing to solve the problem.

The CoA clarified that the analysis must be conducted strictly from the perspective of the skilled person at the priority date, focusing on whether they would—not merely could—have arrived at the claimed solution with a reasonable expectation of success.

In respect of sufficiency of disclosure, the CoA held that the test is whether the skilled person is able to reproduce the claimed subject matter on the basis of the patent’s disclosure without any inventive effort and without undue burden. Disclosure of one way to do this is enough for most claims. Where the alleged insufficiency relates to a functional feature, it is not required that every embodiment covered should be enabled: as long as the skilled person, using the patent’s disclosure, is able to obtain suitable embodiments within the claim, the non-availability of other embodiments is immaterial. The court goes on to state clearly that it is not required that “every conceivable” embodiment is enabled.

The CoA did not need to address fully whether its broad statement of principle should be understood as meaning that, even for broad claims covering large numbers of potential embodiments, a claim will be considered enabled as long as a small number of embodiments are enabled – i.e. that breadth of claim is essentially irrelevant provided some embodiments are enabled.

Enforcement

UPC orders are enforced principally by the means of penalty payments for non-compliance. The Court of Appeal recently clarified in Kodak v Fujifilm that, to be able to enforce a penalty, a penalty order must have been issued by the UPC. It is not sufficient for there to be an order setting out what a penalty would be.  However, a penalty order may be issued separately in a later order, connecting it to a penalty already contained in an earlier order or decision.

This establishes an unambiguous two-stage process: first, obtain a penalty order; second, if non-compliance occurs, initiate enforcement proceedings based on that prior penalty order.

Fee Increases

Finally, a gift of the season: as of January 1, 2026, the court fees at the UPC will rise – by 33% in most cases but in some cases more.

That an increase is planned is not a surprise. The UPC is supposed to be self-funded, but the court refunds up to 60% of the court fees if parties settle before the closure of the written procedure – perhaps something for the court to reflect on in the new year!

Image Source: Deposit Photos
Author: jamaludinyusup
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