German and French patent Local Divisions dominate the Unified Patent Court ("UPC").
The UPC, a single patent court for European Union Member States, has published the first statistics on its case load since its establishment in 2023. Between June 1, 2023, and January 31, 2024, a total of 196 cases were filed with the Local Divisions. The cases include infringement cases, counterclaims for revocation, and damages proceedings, as well as applications for provisional measures, for preserving evidence, and for order for inspection. At the Central Divisions in Munich and Paris, a total of 25 cases (revocation proceedings and declaration of noninfringement) were filed.
The infringement proceedings panels are made up of three legally qualified judges. Two of these judges are domestic, and one is from another participating Member State. Thus, the nationality of two judges is determined based on the Local Division. An additional technically qualified judge may also sit on a panel.
Of the 83 infringement proceedings, 72% were conducted before German Local Divisions and 11% before French Local Divisions, as shown in Fig. 1:
The percentages of infringement cases heard by German and French judges are similar to the distribution among the national courts in 2022, before the introduction of the UPC in 2023.
Fig. 2 shows that 65% of European patent infringement proceedings were conducted before German judges and 13% before French judges.
Cases generally are assigned to courts based on territorial jurisdiction, as jurisdiction is determined by the location of an infringement. Due to the global trade of most goods, however, especially via the internet, the location of a product's offering can be anywhere in the world. Plaintiffs, therefore, regularly have the liberty of forum shopping.
The above statistics show a continuing confidence in German judges under the UPC. The language regulation that permits UPC proceedings to be conducted in English, rather than in German, may also be a factor in the increase from 65% to 72% of cases before the German judges. For 43% of all UPC proceedings, English is the procedural language, but German is used in 47% of all UPC proceedings, likely because it is the native language of the presiding judges.
The popularity of German judges does not seem to be negatively affected by the German bifurcated system—in which legal validity and infringement are heard in different courts, and the UPC system—in which both are heard in one court. The UPC's tight time limit regime, which results in a short duration of legal validity proceedings, may be of particular interest to plaintiffs as well.
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