May 2025 The Unified Patent Court (UPC) continues to refine its procedural and substantive framework, with several recent decisions shaping the practical landscape for patent litigation in Europe. Below are two meaningful updates from recent UPC case law that are relevant for patentees and litigants.
- Munich Local Division Endorses EPO’s Problem-Solution Approach
In Edwards Lifesciences vs Meril (UPC_CFI_501/2023), the Munich Local Division (LD) has affirmed the use of the problem-solution approach (PSA) for assessing inventive step. The PSA, a method long established by the European Patent Office (EPO) and its Boards of Appeal, is designed to objectively determine whether an invention is non-obvious / inventive over the prior art.
The Munich LD emphasised that adopting the PSA in UPC proceedings promotes legal certainty and aligns the UPC and the EPO.
While this decision signals a strong preference for the PSA within influential divisions like Munich, it’s important to remember that the UPC Court of Appeal has clarified that the PSA is not mandatory across all divisions. As such, alternative approaches to inventive step are still permissible.
In summary, while not universally binding, use of the PSA seems to have merit within the UPC. Attorneys may be well-advised to incorporate PSA-based reasoning when arguing inventive step, especially before certain divisions.
- Delays Undermine Urgency for Provisional Measures – BARCO vs Yealink
The Brussels Local Division’s ruling in BARCO vs Yealink (UPC_CFI_582/2024) underscores the importance of timely action when seeking provisional measures such as preliminary injunctions or evidence preservation.
There appears to be an urgency requirement: The court found that BARCO’s delay (waiting more than a month after the grant of unitary effect to initiate proceedings) undermined the urgency typically required for provisional measures. BARCO had prior knowledge of the alleged infringing products, making the delay unjustifiable.
Timing matters: The court clarified that the standard one-month deadline for filing preliminary objections from the date of claim service does not apply in provisional measure proceedings. Instead, deadlines are dictated by the case-specific circumstances and agreements between parties.
In summary patentees should act quickly, by initiating provisional measures as soon as they become aware of an infringement and have a granted patent. Patentees should also explain delays, ensuring a clear and compelling justification is presented to maintain the urgency element.
This decision highlights that proactive enforcement is crucial when seeking interim relief under the UPC.
Conclusion
These recent rulings demonstrate the UPC’s evolving jurisprudence and growing influence across Europe’s patent landscape. Whether through alignment with EPO standards or strict enforcement of procedural timelines, the UPC is quickly defining its role as a robust and forward-thinking venue for patent litigation.
Patentees and litigators should remain agile in their strategies, ensuring they act promptly, argue persuasively, and fully leverage the UPC’s developing legal framework.
