The Unitary Patent and the Unified Patent Court: what is working, what is not, and what should come next

On 19 February 2026, I had the honour and privilege of being invited by the European Commission to discuss the Unitary Patent (UP) and the Unified Patent Court (UPC) with some of Europe’s leading patent practitioners. This article sets out the reflections I shared on that occasion: where the system is already delivering, where the friction points are emerging in practice, and which technical adjustments would most effectively improve usability, predictability and legitimacy.

1. From political project to market reality

The UP/UPC package has passed its most delicate phase: the moment when users decide whether a new court is a credible forum or merely an experiment. Uptake of the unitary title has been sustained, and the Court is producing decisions on timelines that are materially shorter than many multi-jurisdictional European strategies. Just as importantly, the Court of Appeal has started to provide the type of procedural and doctrinal guidance that limits divergence between divisions and allows businesses to price risk.

At the same time, early “success” should not be confused with “maturity”. A system can be fast and attractive for sophisticated repeat players while still being intimidating, or even structurally discouraging, for SMEs, universities and research organisations. The next phase should therefore be about refining the operating model.

2. The Unitary Patent: efficiency, but with unavoidable trade-offs

The UP offers administrative simplicity and a clean renewal-fee logic, and it has become a natural choice for patents that are commercially valuable across several participating Member States. Its strength, however, is also its constraint: unitary effect is indivisible. Users cannot “dial down” territorial scope to match a narrower market footprint, and they cannot partially surrender the right to reduce exposure.

This design inevitably pushes companies – especially those with uneven geographic commercialization – to treat the UP as one option within a broader portfolio architecture. In practice, many sophisticated filers now segment filings: unitary effect for technologies where broad enforcement is valuable, and classical European patents validated nationally where central revocation risk is unacceptable.

3. The UPC: the strengths are real, but they create new pressure points

The UPC’s main value proposition is structural: a specialised court capable of issuing remedies that bite across multiple participating States, without the duplication (and inconsistency risk) inherent in parallel national litigation.

The Court’s front-loaded procedure also imposes discipline: parties are expected to put facts, arguments and evidence on the table early, and divisions have shown willingness to treat late additions as inadmissible.

This is precisely where the system’s most acute stress points emerge. Front-loading is efficient when parties are well resourced and prepared; it becomes problematic when a defendant – especially an SME – faces a compressed timeframe to assemble technical evidence, prior art, experiments, witness statements and internal documentation.

4. What is not working well in practice (and why it matters)

4.1 Divergence between divisions and forum concentration

A recurring operational concern is uneven practice across local and regional divisions. Variations in scheduling, evidentiary expectations, confidentiality handling, and approaches to security for costs can translate into material differences in litigation risk.

Where predictability is uneven, forum selection becomes a quasi-substantive choice.

This effect is amplified by the current distribution of filings, which remains heavily concentrated in Germany (Munich/Düsseldorf/Mannheim/Hamburg). Indeed, German divisions are actively promoted as patentee-friendly (although statistics show consistency in this regard across divisions), and therefore attract cases, with the result that UPC practice and culture risk becoming very “German-driven” rather than genuinely supranational. A pragmatic correction may be to introduce mechanisms that reduce structural incentives to concentrate: notably, a rule allowing cases to be moved if the seized court is overloaded, and a more balanced composition such asjudges of three different nationalities per division.

4.2 Front-loaded pleadings

The UPC’s procedural logic is uncompromising: early completeness is rewarded; late course-corrections are penalised. In practice, this creates two technical issues:

i)       statements of claim and defence are not merely ‘national pleadings in a new template’: they require a degree of early technical and evidentiary substantiation that many users underestimate;

ii)     the procedural consequences of omissions can be disproportionate, especially when the missing material is not a tactical ambush but a predictable product of compressed timelines or limited internal resources.

4.3 Evidence measures and interim relief

The UPC has made extensive use of evidence-preservation and inspection measures, often around trade fairs. These measures can be legitimate and necessary, but they are also highly disruptive. In an ex parte context, the balance between effectiveness and procedural fairness becomes delicate: targets may face sudden access to premises, devices, software and confidential information before they have meaningfully been heard.

Protective letters are an important safety valve, yet they are not always a reliable shield, particularly where an applicant frames the request as inspection or preservation rather than a classic preliminary injunction. The practical result is that risk management increasingly requires proactive readiness: internal protocols for dawn-raid-style measures, immediate appointment of counsel, and rapid requests for confidentiality protections.

4.4 Confidentiality versus transparency

UPC proceedings frequently involve high-value trade secrets: source code, formulas, manufacturing parameters, pricing, R&D roadmaps and licensing terms. The Court has tools to protect confidential information, and recent appellate decisions have emphasised proportionality and fair-trial guarantees, encouraging targeted redactions and confidentiality clubs rather than blanket secrecy.

On the other hand, transparency remains inconsistent. Public access to pleadings and evidence is not automatic, and practices can vary. This matters for two reasons:

i)        it affects the ability of practitioners and businesses to learn from the Court’s developing case law; and

ii)       it affects legitimacy: in a new supranational court, opacity invites narrative capture, especially where stakeholders already suspect forum tilt or procedural imbalance.

4.5 Costs and security

Cost exposure is the single most cited deterrent for SMEs. The UPC can be cost-efficient compared to multiple parallel national actions, but it can also be brutally expensive, especially if you lose. Recoverable-cost ceilings, security-for-costs decisions and fee structures can turn procedural choices into existential business decisions.

Furthermore, a recurring inefficiency is that costs can turn into a matter in their own right, with separate cost proceedings. The UPC should instead aim for cost predictability and no separate proceedings: either the parties agree, or the Court determines recoverable costs by reference to fixed tables (potentially more granular than the current recoverable-cost ceilings).

4.6 Validity and infringement management

In current UPC practice, many local divisions tend to keep infringement and validity together, but parties are increasingly exploring when to separate them, particularly where a revocation action is already pending and advanced elsewhere.

The system would benefit from clearer Court of Appeal guidance on bifurcation/stay, including more explicit direction on parallel EPO opposition vs UPC litigation.

4.7 Remedies and proportionality

Early UPC jurisprudence suggests that permanent injunctions remain the default consequence of proven infringement, but proportionality is increasingly treated as a structured control mechanism. This aligns the UPC with modern EU remedial thinking and creates space for considering third-party interests (for example, patient access in life-science disputes) or calibrated transition periods where appropriate.

Yet proportionality also becomes a battleground of evidence. Parties will invest more in remedy-stage factual records: alternatives, supply chains, public-interest impacts and quantified harm. The system will therefore benefit from clearer guidance on what evidentiary showings are required and how proportionality is operationalised across divisions.

4.8 EU law interface and ‘long-arm’ questions

The UPC is an international court, not an EU institution, and there is no direct appeal to the Court of Justice of the European Union (CJEU). Nonetheless, the UPC is designed to behave like a national court for EU-law purposes, including through the preliminary reference mechanism. This creates both opportunity and tension.

The tension is most visible where UPC practice touches EU-law-sensitive issues such as jurisdictional reach and the proportionality of measures under the EU enforcement framework. Recent debate on the possibility of adjudicating infringement effects involving European patents validated in non-UPC states illustrates why appellate guidance – and potentially, at the right moment, a CJEU referral – may be necessary to avoid doctrinal fragmentation.

5. A focused improvement agenda

The most impactful reforms are likely to be operational rather than revolutionary. In my view, the following improvements would most effectively increase predictability, accessibility and confidence, without undermining the Court’s speed and effectiveness.

5.1 Harmonised practice tools across divisions.

Publish and maintain harmonised practice notes / guidelines, together with high-quality templates for statements of claim and defence and for applications for preliminary measures. Serve standardised forms in ex parte seizures/searches, providing defendants with basic information about the procedure, to materially improve procedural fairness and reduce disputes over what information must be provided at the point of execution.

5.2 Cost predictability and streamlined cost handling.

Reduce ‘satellite’ cost litigation. Encourage party agreement where feasible; where not, move toward court decisions grounded in clearer, more granular tables than current ceilings.

5.3 Refinements to the RoP where practical experience has revealed gaps.

Consider procedural adjustments such as: recognising invalidity as a defence (not only via counterclaim); ensuring that a revoked patent does not revive upon appeal withdrawal; extending protective letters to search orders; and simplifying default judgment mechanics where a full merits examination is not necessary to protect basic fairness.

5.4 Transparency as a system asset.

Upgrade official statistics and decision searchability. Publish short, official topic-based digests (claim construction, inventive step, injunctions, damages).

5.5 Coherence with the EPO and the national layer where it re-enters.

Develop clearer conventions on how UPC proceedings should interact with parallel EPO oppositions (including stay criteria). Where the UPCA intends uniform rules, interpret them autonomously, rather than importing one national tradition. And address the largest fragmentation point – prior use – through minimum common standards.

6. Closing thought

The UP/UPC package has already changed European patent strategy: it has accelerated timelines, increased the value of early preparation, and created a truly continental enforcement option.

The next stage is not about redesigning the system. It is about reducing avoidable friction: harmonising practice, making costs more predictable, strengthening transparency.