- PatentNew
- Trademark
- Innovation
- Solutions
- Contact
- Learn & Support
- Learn and support
- Resource HubAccess value added content to support your IP strategy
- Webinars & EventsAre you interested in attending one of our online or onsite event?
- Product TrainingsCustomer success is our priority. Increase your skills in the use of Questel’s software
- Product NewsA platform dedicated to software and platforms news and evolutions
- Best-in-class Customer ExperienceOur goal is to exceed our clients' expectations and share best practices
- IP TrainingIncrease the IP-IQ of your entire organization with engaging IP training programs
- Resource Hub
- About Questel
- Learn & Support
- Learn and support
- Resource HubAccess value added content to support your IP strategy
- Webinars & EventsAre you interested in attending one of our online or onsite event?
- Product TrainingsCustomer success is our priority. Increase your skills in the use of Questel’s software
- Product NewsA platform dedicated to software and platforms news and evolutions
- Best-in-class Customer ExperienceOur goal is to exceed our clients' expectations and share best practices
- IP TrainingIncrease the IP-IQ of your entire organization with engaging IP training programs
- Resource Hub
- About Questel
European Patent Trends: Has the UPC System Been a Success?
The launch of the Unified Patent Court (UPC) system in June 2023 provided patent owners and applicants with access to a completely new European patent right and Europe-wide court system, but what has been the uptake? In our June 2024 webinar, we examined the opt-out and litigation trends to uncover the response to this new European patent right with unitary effect (‘unitary patent’). Here, we summarize some of the key points discussed.
Has the unitary patent revolutionized the European patent landscape—or is it business as usual for rights holders? This was the question posed by our subject matter experts Caroline Chenique and Steven Nindorera-Badara in our June 2024 webinar celebrating the first birthday of the UPC system.
Analysis of the first 12 months of data clearly shows a healthy upward trend for the new right, with almost one quarter (23.9%) of European patents filed in the first year (equivalent to more than 27,850 applications) taking the unitary patent route.
Filing Trends Revealed from the First Year of the UPC
- Geographical origin, size, and type
The data published by the European Patent Office (EPO) reveals Europe (EU, CH, UK, and other EPO states) to be the main source (64.3%) of unitary patent filings in the first 12 months, followed by the US (16.1%), China (6%), Japan (3.9%), and Korea (3.3%).
In terms of the size and type of organizations using this filing route, it’s predominantly large enterprises (56.9%), followed by small to medium-sized enterprises (SMEs), start-ups, and individual inventors (35.5%), and universities and public research organizations (7.6%).
Latest News
Since the webinar (for which this data analysis took place), Romania has acceded to the UPC system, becoming its 18th participating EU member state. As of 1 September 2024, all European patents with unitary effect automatically cover Romania.
- Technology field
Looking at the domains covered by the unitary patent filings, medical technology stands out with 12% of all unitary patents at the time of analysis, twice as many as the second-ranked fields (civil engineering, measurement, transport, other special machines, digital communication), which each have less than 5%.
- Top 25 proprietors
Given the predominance of filings in the medical technology sector, it’s not surprising to find companies that operate in that industry represented in the list of top 20 unitary patent owners. Johnson & Johnson tops this list with 502 European patents with unitary effect, with Becton Dickinson also represented in the top 10.
Perhaps more surprising (given the predominance of European filers referenced above) is that the list also includes major players outside of Europe, with Johnson & Johnson, Samsung Group, and Qualcomm in the top 5. Research organizations are also represented in the top 10 by Germany’s Fraunhofer-Gesellschaft.
- Procedural languages
As European patents must be filed in English, German, or French, it’s interesting to look at the procedural language favored by applicants in the first year. English is the leader with almost 74% of European patents taking the unitary patent route, followed by German and French.
Looking at the translation languages, we can see that Spanish is at the top position, followed by English and German. A key factor here is that Spain is not part of the UPC system, so applicants seeking protection in that territory must follow the classical EP validation route (which requires a translation of the full text that can also be used for the unitary patent).
Likewise, applications filed in French and German must be provided with an English translation when using the unitary patent route, while claims must be translated into German as part of Rule 71(3). Anecdotally, we have also heard from some of our clients that they prefer to use or have a German version in case of litigation before the German courts.
Which European Patent Filing Route Do You Use?
We asked our webinar attendees whether and how much they used the unitary patent route for their portfolios.
In the afternoon session (US/EU), ‘all my patents’ was selected by 4%, ‘some of my patents’ by 57%, and ‘none of my patents’ by 39%. The results differ from the morning session (Asia/EU), in which 14% of respondents said they were using the unitary patent route for all their European patents, as well as from a similar poll we ran last year, in which only 1% of participants said they planned to use the unitary patent route for all their European patent applications.
Share your approach by voting below.
Opt-Out Trends from the First Year of the UPC
Moving to the opt-out trends observed in the 12 months since the system launched in June 2024, we can see that most assignees have trusted the new jurisdiction to oversee their European patent rights.
Almost 600,000 published European patents and patent applications were opted out in the first year, which is equivalent to around 35% of live EPs—a similar percentage to that observed at the end of the sunrise period—with 65% of live EP rights technically part of the UPC’s jurisdiction at this time.
If we look more closely at the opted-out patents, we can observe that assignees tend to opt patents out when they have been granted (and they know the final scope) and when patents have been or are challenged, i.e., they carry a higher risk of litigation.
Of the live EPs opted out:
- 45% were opted out when granted (versus 17% when pending);
- 54% of those opted out have an opposition history.
This data was gathered using queries that we developed for our Orbit Intelligence patent data search and analysis platform, which also revealed some other interesting trends:
- Age range
The opted-out patents are neither very old nor very young, with most granted patents between 5 and 15 years old.
- Industry field
Most (60%) opted-out patents are in the chemistry, pharma, and biotech field.
- Geographical location
Telecommunications and digital communications are two of the industries with the least involvement currently in the UPC system (by number of unitary patent and opt-out filings), which is also reflected in the analysis when we look at the location of the assignees. As can be seen from the graphic below, Asian countries appear in the same space, with Japanese, Korean, and Chinese players particularly active in these industries.
Do You Opt European Patents Out of the UPC System?
Of our afternoon webinar (US/EU) attendees, 33% said they opted ‘all my (European) patents’ out of the UPC system, 57% said ‘some of my patents’, and 10% said ‘none of my patents.’ Again, the results differed slightly from our morning session (Asia/EU), where 22% answered ‘all my patents’.
Share your approach by voting below.
Litigation Trends from the First Year of the UPC
Examining the data from the first 12 months of the UPC system, we can also observe some interesting trends in litigation before the Unified Patent Courts.
- A concentration of infringement cases
The first obvious trend is the concentration of infringement cases, as well as the speed with which these were brought. There were around 100 cases brought before the UPC in its first year of operation and more than 60% were infringement actions:
The dynamics of the different actions are equally interesting, with the first cases brought effectively on the first day of the new UPC system, meaning that patentees were not only ready and willing to use the new tool but also actively preparing to do so.
The data is not shown in the above chart, but it’s worth noting that the first decisions were also issued in the very first months, meaning that this new jurisdiction is working at a fast pace. As more decisions are issued, more trends will emerge.
- A battleground for European companies—and international conflicts
If we examine the geographical location of the parties bringing cases before the UPC, we can see that this route is used mainly by European companies against other European companies.
However, the tool is also being used by European companies against non-EU competitors and as a battlefield for conflicts over patents that are already the subject of litigation elsewhere.
- MedTech, pharma, and telecoms are leading the pack
The fields of MedTech, biotech/pharma, telecommunications, and electronics are particularly well represented in litigation before the UPC.
Digging further into the data, we can see that most plaintiffs are from industry (corporations of varying sizes), with non-practicing entities (NPEs) now starting to enter the frame.
But, what about the patents themselves—can we see any trends in the EPs at the heart of the disputes?
- Average age of disputed patents
If we look at the age of disputed patents, we can see that the average is 6+ years old, which corresponds roughly to the average examination period in Europe.
The patents used for infringement actions are of all ages, while those under revocation/invalidity actions are a little younger. In technology fields used to litigation, we can observe that the litigated families are not chosen at random, but rather from solid families built for litigation. In other words, players use their stronger patents when litigating before the UPC.
Has the 40-Year Wait Been Worth It?
While there has been significant adoption of the new UPC system, there is not yet a convergence in strategy in terms of technological field or approach, with more trends likely to emerge in the coming years. What we can say with certainty, however, is that the UPC and unitary patent system provide European patent holders with access to a new and robust tool. Its ability to handle the volume of opt-outs and litigation cases efficiently has added to trust in the system.
We will continue monitoring filing and litigation data over the next six to 12 months to see how the trends we have observed continue to evolve.
To find out more about the filing, opt-out, and litigation trends observed in the first 12 months of the UPC and unitary patent system, watch our webinar ‘Happy 1st Birthday Unitary Patent and Unified Patent Court’ or contact our European patent subject matter experts for dedicated support.