Is the Unified Patent Court affordable for small biotechs?

The Unified Patent Court (UPC) and the unitary patent came into force in June 2023. The goal was to benefit from a single title (the unitary patent) covering the territory of the European Union. European Patents are granted at the European Patent Office under the European Patent Convention (EPC) for its 39 EPC member states: 27 EU and 12 non-EU states. Following its grant, the European Patent was split into national patents, each of which had to be enforced before national courts. Thus, in theory, litigation of a European Patent could have meant litigation in 39 European countries. Although, in reality, 80 % of all litigation took place in Germany and then the case was eventually settled in the rest of Europe, it seemed advantageous to have one unitary patent and one court for patent litigation.

What the UPC changed
Now, after grant of the European Patent the patent owner may choose the “old route” and may obtain 39 national patents in Europe that are litigated before the respective 39 national courts (if the owner opts-out of the UPC system which will be possible until 2030) or the patent owner may obtain 39 national patents that are all litigated before the UPC (if the owner opts-in the UPC system and insofar those countries are members of the UPC).  Alternatively, the patentee may now just obtain the unitary patent that is litigated before the UPC. However, as just 18 EU countries are currently UPC countries, in case the patentee wishes protection in all EPC countries, he may obtain one unitary patent and 21 national patents for those EPC countries that are not members of the UPC. Amongst those countries that are not members of the UPC are quite important ones as Great Britain, Spain, and Switzerland. To make things even more complicated, patentees may obtain protection for the same invention via a national patent, in addition to a unitary patent, in some of the UPC countries. There is no double patenting prohibition between the unitary patent and a purely national patent in some countries. This means that protection may be available for the same invention as a national German Patent and additionally as a unitary patent with effect in Germany. Both patent rights, that are protecting the same invention, can be separately enforced for the same territory. So, currently, the available patent protection in Europe still seems fragmented and complicated despite the UPC system.

Still complex in Europe
The UPC definitely has arguments in its favor. It is cheaper to nationalize an EP patent into a unitary patent and 21 national patents than obtaining 39 national patents after grant of the EP Patent. This may incentivize smaller companies to request a unitary patent instead of choosing the “old route”. However, if the patent owner wants to have protection in 3 or 4 core countries in Europe only, then the transformation into the unitary patent and the subsequent annuities would be more expensive in comparison to the “old route”. Another advantage is that the UPC offers fast and efficient timelines.

On the other hand, UPC proceedings are very front loaded compared to EPO and national proceedings. This demands strict procedural discipline and careful advance planning, which requires larger lawyer teams because of the very early, comprehensive submissions that leave little room for later adjustments. Bigger lawyer teams require bigger money.

Further, the structure of the UPC enables complex scenarios. While defendants in infringement proceedings may attack patents by a counterclaim for revocation before the competent Local Division, the same patent may be challenged by other parties in central revocation actions before the competent Central Division.  Such parallel proceedings put a lot of pressure on the patent owner, who must defend the same patent in multiple fora. If, in addition, national patents and purely national proceedings also come into the litigation play, it seems that the UPC just opened additional dimensions of litigation rather than simplifying it, which showed the Amgen/Sanofi case: at least 4 UPC procedural lines (revocation + appeal + infringement action) and in parallel proceedings before the EPO and proceedings before national courts.

One case, big risk
More complex litigation scenarios, front-loaded and fast proceedings, larger lawyer teams and an additional layer of litigation require deep pockets on the patent owner’s end. We also hear calls for the implementation of “common-law-based instruments” into the UPC system, e.g. discovery tools.  Discovery proceedings, however, require intense preparation and would mean an explosion of costs.

In summary, albeit the system was founded to benefit SME’s, it seems that the costs are much too high and thus, the system serves in particular the bigger companies. Moreover, defending and enforcing a patent in the UPC system is not only very costly but also carries the risk of losing a valuable patent across the whole of Europe in one single revocation action.

Smaller companies should, thus, carefully design their patent portfolio strategies as well as their litigation strategies and should probably not put all their “patent eggs” into the UPC basket, in particular, not the most valuable ones.

We truly hope that the legislator will prolong the period in which patent owners can choose whether they want to opt-in the UPC or whether to enforce their European Patents before national courts. Otherwise, litigation in Europe will be a game for Goliaths only but not for smaller entities and SME’s, which shall be the motor of innovation in ­Europe.

Ute Kilger, PH.D., is partner at Boehmert & Boehmert. The (bio)chemist by training has a track record of more than ten years in the patent departments of large pharmaceutical companies. Dr Kilger is licensed as a German and European patent attorney.

This article was originally published in European Biotechnology Magazine Spring 2026.