Two And A Half Years Of The UPC – Trends And Turning Points

Welcome to our latest briefing, in which we look back at Unified Patent Court (UPC) developments in the last six months (July to December 2025) since our last briefing (The UPC Two Years On – published July 2025) and consider what this increasingly well-established jurisdiction may offer us in 2026.

We start by looking at some of the key issues which may be resolved by the UPC Court of Appeal in 2026 before considering what will be new in the UPC system in 2026. We then review the success of the unitary patent and set out some statistics on the UPC's first two and a half years in operation and shine a spotlight on SEP and FRAND issues before providing more detailed updates on specific developments across UPC topics including jurisdiction, validity, infringement, injunctions and various important procedural matters. In the last few pages of this briefing we set out a reminder of some key issues relating to unitary patents and UPC litigation which are worth keeping in mind in IP transactions.

Issues for the UPC Court of Appeal in 2026

The Court of Appeal (CoA) of the UPC was busy in 2025, dealing with many key aspects of law and procedure. The growing number of CoA decisions providing definitive guidance on key issues is of great assistance to all stakeholders involved in or contemplating UPC litigation as it helps to increase predictability.

The true extent of extra-territorial ("long-arm") jurisdiction

The past year has seen a striking expansion of the Unified Patent Court's approach to jurisdiction, marking the rise of the UPC's application of its "long-arm" jurisdiction. This development has been supported by the CJEU's judgment in BSH Hausgeräte v Electrolux (BSH) which reshaped the landscape for cross-border patent enforcement in Europe. BSH permits EU-domiciled defendants to be sued in their home courts for their alleged infringement of patents granted in other countries (whether EU Member States or not). The decision states that while validity cannot be raised in defence in relation to patents granted in EU/ Lugano states, it can be decided inter partes as part of a defence to infringement for patents granted elsewhere.

The UPC has adopted the BSH reasoning, applying it to take jurisdiction over alleged infringements occurring both inside and outside UPC participating states, though only in relation to EPs (as the UPC does not have jurisdiction over other national patents). Recent first-instance decisions — such as Fujifilm v Kodak, HL Display v Black Sheep Retail, and Dyson v Dreame — show the court asserting jurisdiction over a defendant domiciled in a UPC territory in relation to infringing acts taking place in any country in which the patentee has an EP in force (whether or not a UPC participating country).

In other cases, the UPC has found that it has jurisdiction to hear such extra-territorial infringement actions against a defendant which is not domiciled in a UPC participating country, provided that the defendant has a sufficiently "close connection" to another "anchor" defendant in the case which is domiciled in a UPC participating country (see e.g. Dyson v Dreame). Further, even if all of the defendants are domiciled outside the UPC, then the UPC has concluded that it can take extraterritorial jurisdiction if damage is deemed to arise within a Member State, as illustrated in Hurom v NUC Electronics. The Paris Division's ruling in KEEEX v Adobe, OpenAI and Ors confirms that online availability alone may suffice to create the necessary territorial link.

These trends underscore the UPC's willingness to interpret its jurisdiction expansively, but they also highlight the provisional nature of the current jurisprudence, which to date consists only of first instance rulings. As questions regarding the commercial connection of defendants required to loop them all into an action and the reach of UPC's jurisdiction into non-UPC territories continue to be brought before the courts of first instance (CFI), we expected these important issues to reach the CoA before long. This will provide an opportunity for the CoA to harmonise the approach and define the proper boundaries of the UPC's extra-territorial competence.

See further discussion of the impact of BSH on the UPC at section 1.

A universal approach to the doctrine of equivalence?

As discussed in further detail in section 11, different approaches have been adopted in the UPC regarding the Doctrine of Equivalents in the absence of any specific test being set out in the UPCA. Notable cases include Plant-e v Arkyne, November 2024, in which The Hague Local Division (LD) applied a four step test based on the approach of the Dutch national courts, by agreement of the parties, and Raccords, October 2025, in which the Paris LD advocated for a 'harmonised' approach melding together the essence of the various national tests. This is a prime area for guidance from the CoA in 2026, given the right opportunity.

Jurisdiction to determine FRAND licence terms?

FRAND disputes continue to play out before courts worldwide and parties have been considering the role that the UPC can play in such campaigns. In the FRAND disputes before the UPC that have reached a final decision to date, the UPC courts have taken an approach in line with the German national courts, resulting in a finding that the implementer had not acted as a willing licensee and ordering an injunction without assessing what would be appropriate FRAND licence terms.

In Sun Patent Trust v Vivo Mobile Communication Co. and others at first instance the Paris LD held that the UPC has jurisdiction to hear Sun's request for a determination of FRAND licence terms alongside its claim for infringement. This is unusual as, so far, the request for determination of such terms has come from the implementer, whereas Sun is the SEP holder in that case. It is an open question as to whether the UPC has jurisdiction to do this in the way that some national courts commonly do (most notably China and the UK). The CoA is expected to give its views on this in the appeal question during 2026 (it has already refused a stay of the main proceedings pending the outcome of the appeal (UPC_ CoA_904/2025, UPC_CoA_905/2025, 27 November 2025)).

See more on SEPs and FRAND at the UPC on page 5.

New for 2026

More Appeal Judges: The increasing workload of the CoA has triggered the appointment of a third panel of judges, which is welcome. The new panel will begin hearing cases from January 2026. Concerns that the different CoA panels could issue diverging decisions on key issues have been alleviated by two recent decisions on inventive step issued by the CoA (Amgen v Sanofi-Aventis/ Regeneron UPC_CoA_528/2024 and UPC_CoA_529/2024 and Edwards v Meril (UPC_CoA_464/2024 et al) – 25 November 2025). While each case was decided by a different CoA panel, it is notable that the CoA had aligned the timing of the decisions, handing both down on the same day. The decisions both set out the UPC's approach to inventive step in near identical terms, making it clear that the CoA is willing to take a pragmatic approach behind the scenes to ensure coordination and consistency on key legal principles.

The new legally qualified judges for the CoA are:

The first and second panels of the CoA are comprised as follows:

The UPC's Patent Mediation and Arbitration Centre (PMAC): The PMAC is due to commence operation in Q2 2026 with the inauguration ceremony recently announced as 2 June 2026, following the formal adoption of the Mediation, Arbitration and Expert Determination Rules which is expected February 2026. The ceremony will take place in Ljublijana, one of the two official seats of the PMAC (the other being Lisbon). Once it commences operations, the PMAC will offer specialised patent dispute resolution for disputes within the UPC's jurisdiction through mediation and arbitration.

Draft mediation and arbitration rules have already been published following a series of consultations. Under the draft rules, the UPC cannot compel parties to go to PMAC arbitration/mediation, it can only recommend that they do so. However, parties to a dispute can also refer themselves for mediation/arbitration by agreement at any stage (including pre-action), without the need for any intervention from the UPC (though, if the parties agree, it may stay any active litigation while the PMAC process is followed through).

The first round of applications for positions as arbitrators or mediators closed on 10 October 2025 and the second round will open early in 2026. The Director (currently Mr Alea Zalar) and the Expert Committee of PMAC will meet at least once a year to establish and maintain a list of qualified arbitrators, mediators and expert determinators to act in PMAC arbitrations/mediations.

The success of the unitary patent so far

In December 2025, the EPO published its contribution to the European Commission's forthcoming report on the Unitary Patent (UP) system, which is due for submission to the European Parliament and the Council of the European Union by June 2026 as required by the UP Regulation. The EPO concludes that the UP package has been "a markedly strong success", achieving the core objectives identified during its development phase.

Evidence of the success of the UP is visible in the proportion of European patents being converted to UPs by patentees after grant.

•  In 2023, its first six months of operation, the EPO received 17,254 requests for unitary effect, representing 17.5% of all EPs granted in that period.
•  By the end of 2025 the number of requests had surpassed 78,000, an uptake of 28.3% – so more than a quarter of all EPs granted in 2025 have been converted to UPs.
• Uptake has been even stronger amongst patentees from the EU, with around 40% of granted EPs being converted to UPs in 2025. In total 39.5% of all applications from patentees based in all the EPC states were converted to UPs.
• Geographically, in 2025 around 60% of UP proprietors are located in the EPC Contracting States. UP proprietors from the United States make up around 16%, while those from Japan, South Korea and China account for around 15%.
• Uptake of UPs by Small and Medium Enterprises (SMEs), universities and public research organisations has been strong, with such users accounting for around 40% of all UPs annually. 66% of European SMEs holding a European patent have requested registration of unitary effect since the system came into effect.

UPC statistics (June 2023 to December 2025)

We set out below some statistics for the UPC, showing cumulative figures from the commencement of the UPC on 1 June 2023 to December 2025.

The Preliminary injunction (PI) decisions chart represents final results of PI applications, incorporating decisions on appeal. There have been 15 appeals of PIs decisions to date, two of which were still awaiting decision by the CoA at the time of writing. Of those 13 appeals decided, there were: six where the CoA overturned the first instance decision (one where the CoA refused a PI which had been granted at first instance, and five where the PI was granted by the CoA having been refused by the CFI), and seven where the CoA confirmed the first instance decisions on appeal (four where the CoA upheld a refusal and three where it upheld the grant of a PI).

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