A role for the English courts in a world of established UPC litigation: strategic benefits of litigating in the UK two and a half years on

Abstract

Since its launch on 1 June 2023, the Unified Patent Court (UPC) has exceeded many expectations, attracting over 750 cases¹ and establishing itself as a major forum for pan‑European patent enforcement. With the UPC now a proven venue, the strategic question has evolved: rather than asking  what the benefits are of litigating inside or outside the UPC, parties must now carefully consider how UK litigation fits within a multi-jurisdictional enforcement strategy and where and when the UK offers distinct advantages. 

This article revisits my 2022 analysis (here) in light of developments since the UPC began operations, assessing the practical impact of the UPC’s asserted “long‑arm” jurisdiction over UK patents, the English courts’ continued leadership in global FRAND rate‑setting (including interim licence relief), the availability and boundaries of creative remedies such as Arrow declarations and cross‑border DNIs, and the evolving dynamics of costs, pleadings, disclosure and expert practice. What we now see in practice is that UK litigation continues to occupy a central place in complex European patent strategies, providing tools and procedural avenues that simply aren’t available before the UPC.

Introduction

In December 2022, I explored the then emerging strategic considerations for using the English Patents Court in anticipation of the UPC opening its doors. The central question was whether there would be any benefit in litigating outside the UPC once it became operational. Two and a half years on, we have answers, though perhaps not the ones many anticipated.​

The UPC has undoubtedly been a success story. At the time of writing, the Court of First Instance had received over 750 cases, including over 460 infringement actions², far exceeding initial expectations. The court has demonstrated its commitment to rapid resolution, with first instance decisions being delivered on average within  14-15 months of commencement. The Munich, Düsseldorf and Mannheim Local Divisions have emerged as the most active forums, handling over 75% of infringement cases³.​

Yet fears that the UK would become an afterthought in European patent strategy have proven unfounded. The English Patents Court delivered 68 patent decisions in 2025, similar to the number seen in the last two years (68 in 2024, 68 in 2023) and consistent with pre-UPC averages⁴. The UK has cemented its position as a global leader in FRAND rate-setting, while continuing to offer distinctive procedural advantages that make it an essential component of sophisticated patent enforcement strategies.​

The relationship between the UK and UPC jurisdictions has also developed in unexpected ways. The UPC's assertion of "long arm" jurisdiction over UK patents, the emergence of UK interim licence declarations, and UPC anti-interim licence injunctions have created a complex litigation landscape and new jurisdictional dynamics that require careful navigation.​

The UPC's long arm and implications for UK strategy

Perhaps the most significant development affecting UK patent holders since 2023 has been the UPC's assertion of jurisdiction over UK designations of European patents. In a series of decisions culminating in Fujifilm v Kodak⁵, the Mannheim Local Division granted the first UPC injunction covering the UK.​

The legal basis for this "long arm" jurisdiction derives from the Recast Brussels Regulation. Following the CJEU's decision in BSH Hausgeräte v Electrolux⁶, the UPC has concluded that it has jurisdiction to decide infringement actions relating to UK patents where the defendant is domiciled in a UPC contracting member state. ​

This creates significant implications for UK patent holders and potential defendants alike. A patentee can now potentially enforce not only German and French designations of a European patent against a domestic defendant, but also the UK designation, all within a single UPC proceeding. For defendants, this raises the spectre of their UK commercial activities being adjudicated by a court in which the UK has no judicial participation.​

There are, however, important limitations. While the UPC may assess UK patent validity as part of an infringement analysis, such assessment binds only the parties before it. The UPC cannot revoke UK patents with binding effect for all third parties. Furthermore, any UPC order concerning UK entities (e.g. a UPC injunction preventing a UK company from selling products in the UK) may not be easily enforceable before UK courts. In addition, the English courts retain the power to grant anti-suit injunctions to protect proceedings concerning UK patents, particularly where validity is in issue.​ 

The practical consequence is that the UPC's assertion of long-arm jurisdiction has created a new strategic dynamic. Patentees are incentivised to consolidate their enforcement efforts within the UPC's broad territorial scope, resolving pan-European disputes in a single proceeding. For defendants, UK proceedings may serve as a means of protecting the UK courts' jurisdiction over UK patents and of selecting a court where the prospects of success for the defendant may be better. A defendant facing UPC proceedings may additionally seek anti-suit relief from the English courts to prevent the UPC from issuing orders that would bind UK entities or prevent them from defending their rights before UK courts.

This creates a jurisdictional tension that reinforces rather than diminishes the importance of UK litigation. Defendants possess powerful tools to protect UK activities even when faced with broad UPC proceedings.

Parallel proceedings and the influence of UK decisions

In my 2022 article, I suggested that parallel proceedings would continue to be an important strategy and that UK decisions would remain influential on other European courts. Experience since June 2023 has borne this out, though with some nuances.

UK decisions continue to be cited in UPC proceedings. In the MED-EL v Advanced Bionics proceedings, the Central Division (Paris seat) expressly referenced the English Patents Court decision finding the equivalent EP(UK) patent invalid for obviousness. Notably, however, the UPC reached a different conclusion, finding the patent valid and accepting that in doing so it “deviates from the reasoning and reaches a different conclusion than the High Court of England and Wales”⁷.​

This divergence illustrates an important point: while UK decisions remain influential, the UPC is developing its own jurisprudence and will not automatically follow UK courts. The UPC Court of Appeal has now established its own "holistic approach" to assessing inventive step, which, while inspired by the EPO's problem-solution approach, represents a distinct methodology. Similarly, the UPC's emerging doctrine of equivalents, while drawing on principles from member state case law, will ultimately be a unified UPC test.​

For defendants, this creates opportunities that go well beyond challenging the UPC's own reasoning. A defendant can pursue a UK revocation action to obtain a detailed, favourable validity judgment that strengthens its position not only in parallel UPC proceedings but also in wider licensing negotiations, as well as protecting its UK activities. The value lies not necessarily in persuading the UPC to follow the UK courts' reasoning (the MED-EL v Advanced Bionics case demonstrates the UPC will reach independent conclusions), but rather in building a portfolio of outcomes across different jurisdictions. The settlement between MED‑EL and Advanced Bionics on 27 May 2025, reached shortly before the Mannheim infringement judgment, illustrates this: the accumulation of UK and Dutch invalidity findings may well have counterbalanced the Paris Central Division’s December 2024 decision upholding the patent. Multiple invalidity findings, even if they point in different directions, can disrupt a patentee’s enforcement position and put real pressure on them to settle. Moreover, the UPC's own jurisprudence suggests it treats UK decisions as useful guidance even when ultimately disagreeing on the case before it.

For claimants, parallel UK proceedings offer risk mitigation. A patent that is revoked by the UPC may survive in the UK, and vice versa. The UK therefore provides an additional opportunity to maintain patent rights in an important market even if proceedings elsewhere go poorly.​

In 2022, the UPC's real-world speed was unknown and expected to be slower during its formative period, while the UK courts offered established procedures with proven efficiency. The UPC has achieved decisions in most cases within 12 to 15 months. The timelines are now broadly comparable to the UK, although whether that holds as the busiest UPC divisions become more congested remains to be seen.

Creative remedies: the UK's continued edge

The UK courts' willingness to find creative solutions to parties' legal disputes was a key theme of my 2022 article. This remains one of the UK's most distinctive advantages, with developments since June 2023 reinforcing the point.

FRAND Determinations

The UK has consolidated its position as the pre-eminent global forum for FRAND rate-setting. In Optis v Apple, the Court of Appeal handed down arguably the most significant UK FRAND decision since Unwired Planet v Huawei. The court overturned the first instance FRAND determination and awarded Optis a royalty of $0.15 per device, an order of magnitude higher than the figure determined at first instance, equating to a lump sum of $502 million plus approximately $200 million in interest. This case is now proceeding to the Supreme Court.​

In InterDigital v Lenovo, the Court of Appeal reviewed the UK's second global FRAND licence terms determination, adjusting the rate upwards and clarifying principles regarding the conduct of parties.​

Perhaps most significantly, the UK courts have developed the concept of interim licences in FRAND disputes. In Panasonic v Xiaomi⁸, the Court of Appeal held that where an SEP holder has agreed to a UK FRAND determination but simultaneously pursues injunctions abroad to pressure the implementer into accepting above‑FRAND terms, an interim‑licence declaration may be appropriate. In effect, the court may declare that, in the circumstances, a willing licensor would grant an interim global licence pending the UK court’s rate determination, potentially shielding the implementer from injunctive hold‑up in the meantime. Arnold LJ stressed that “FRAND is a process and not merely an end‑point”, a principle subsequently applied in Lenovo v Ericsson⁹, where the Court of Appeal likewise declared that a willing licensor would enter an interim licence pending the final FRAND decision. Later cases, particularly Samsung v ZTE, have clarified the limits of this remedy: interim licences are not available simply because the parties are pursuing rate‑setting in different fora. They are directed at restraining improper injunctive pressure, not at interfering with legitimate choices about where a dispute should be heard.

By contrast, the UPC's ability to determine FRAND terms remains uncertain. While the Mannheim Local Division in Panasonic v Oppo¹⁰ indicated it has jurisdiction to determine FRAND licence terms, it declined to exercise that jurisdiction in this case. Instead, the court assessed the parties' conduct under the Huawei v ZTE framework, found OPPO to be an unwilling licensee, and granted an injunction to Panasonic.​ The UPC took a similar approach in Huawei v Netgear¹¹.

More recently, Sun Patent Trust has asked the UPC to make a FRAND-rate determination in proceedings against Vivo. Ericsson has filed a similar FRAND claim in its dispute with Transsion¹². Whether the UPC has jurisdiction to determine FRAND rates (as opposed to assessing compliance with the Huawei v ZTE framework) remains contested. ​

For parties seeking a definitive global FRAND rate-setting determination, the UK therefore remains the only proven forum.

Arrow declarations

Arrow declarations continue to be available in the UK, providing a means of clearing the way where pending patent applications create commercial uncertainty. In 2024, Pfizer successfully obtained an Arrow declaration in Pfizer v GSK¹³, declaring that it would have been obvious to develop an RSV antigen design at the priority date and use it to treat RSV-associated diseases.

The English courts have clarified the boundaries of Arrow relief. In Sandoz v Biogen¹⁴, a request for an Arrow declaration on the basis that the patent's pending divisional could not become valid was refused. The first instance court confirmed that Arrow declarations are directed at establishing that specific subject matter was not novel or was obvious at a given date, not at pre-emptively foreclosing all paths to patent validity for pending applications, which would usurp the EPO's role.​

For the UPC, it remains unclear whether Arrow declarations are available at all. Article 32(1) UPCA does not list such declarations among the matters within the UPC's exclusive competence. While some practitioners have argued that Arrow relief might be sought under Article 32(1)(g) as "actions relating to the use of the invention prior to the granting of the patent", this is uncertain and untested.

Declarations of non-infringement

Cross-border declarations of non-infringement remain an important tool, though the landscape has evolved. Post-Brexit, the UK courts continue to consider questions of infringement of foreign patents in circumstances where validity is not put in issue, although post BSH v Electrolux the English courts may decide they can do so even when validity is in issue. However, the emergence of the UPC as an alternative forum capable of addressing multiple European designations in a single action, and which now asserts jurisdiction over UK designations, has complicated the position regarding DNIs covering patents in UPC contracting states.

Declarations of non-infringement are not yet a primary use case for the UPC. The few requests filed have either been withdrawn before decision or rejected. While such relief is theoretically available under Article 32(1)(b) UPCA and Rule 61 RoP, defendants have overwhelmingly preferred waiting to be sued for infringement and counterclaiming for revocation, which provides binding effect across all UPC member states.

Procedural advantages of UK litigation

Product and Process Descriptions

The Product and Process Description (PPD) remains a distinctive and valuable feature of UK patent litigation. It allows a defendant to provide a full written description of the allegedly infringing product or process, verified by a signed statement acknowledging that the maker may be cross-examined on its contents.​

The PPD is particularly valuable in technology cases where relevant functionality is buried inside products or cannot easily be reverse engineered. Unlike disclosure or inspection mechanisms available in other forums (including the UPC's saisie and documentary disclosure provisions), a PPD provides a comprehensive, verified description of how the product or process actually works.

The UPC's front-loaded pleading requirements, which require claimants to set out their detailed infringement case (including proposed claim construction) in the Statement of Claim, make the UK's more flexible approach particularly attractive where there is uncertainty about how a defendant's product operates. In English Patents Court proceedings, parties typically provide their proposed claim construction only after they have had the benefit of disclosure and PPDs.​

Expert Evidence and Cross-Examination

The UK's approach to expert evidence continues to offer advantages in cases where detailed technical scrutiny is important. In October 2024, the Nordic-Baltic Regional Division scheduled the first dedicated expert witness hearing at the UPC in proceedings between Dexcom and Abbott¹⁵. This represented a significant development, as the UPC's Rules of Procedure had originally included expert witness provisions to reflect UK practice (when UK membership was still anticipated).​

However, the UK system remains more developed in this regard. UK experts operate under clear duties to the court taking precedence over obligations to their instructing parties. The sequential unmasking approach, where experts consider common general knowledge and prior art before seeing the patent, is encouraged to mitigate the risks of hindsight. Cross-examination of experts is standard practice in UK patent trials, allowing rigorous testing of technical opinions.​

The UK courts have also demonstrated a willingness to grapple with the detailed nuances of the skilled team such as importance of communication between experts where multiple disciplines are relevant to the skilled team. In Pfizer v GSK¹⁶, GSK faced criticism for taking a "siloed approach" that failed to facilitate communication between its vaccinologist and structural biologist experts. Mr Justice Mellor held that this compartmentalisation resulted in an "unduly narrow" approach to the common general knowledge and prior art. The judge preferred evidence demonstrating how real-life research groups at the priority date actually operated, finding that a vaccinologist would naturally consult with a structural/molecular biologist as part of the skilled team when issues arose relating to protein structure.​

For cases turning on fine points of technical detail or expert credibility therefore, the UK's more thorough procedure offers important advantages.

The Shorter Trials Scheme and cost caps

Since 1 January 2024, a new costs cap regime has applied to patent cases in the Shorter Trials Scheme (STS) in the UK High Court. The cap is set at £500,000 on liability and £250,000 on the quantum phase, providing substantially more financial certainty for mid-tier disputes.​

The STS, which has been operating successfully since 2018, offers a streamlined procedure with trials limited to four days and decisions typically delivered within 12 months. Unlike the Intellectual Property Enterprise Court (IPEC; where costs are capped at £60,000 and damages at £500,000), there is no limit on damages recoverable in the STS.​

For cases where UK-only enforcement is strategically sufficient, the STS offers one compelling advantage: a fixed £500,000 cap on recoverable costs across all case values, compared to the UPC's variable costs structure (ranging from €38,000 to €2 million depending on dispute value – see below). Both forums target comparable first-instance timelines and employ similarly structured front-loaded procedures.

Costs considerations

Cost considerations are one of the more significant practical differences between the two forums.

UPC court fees are structured as a fixed fee plus a value-based component. For infringement actions filed from 1 January 2026, the fixed fee is €14,600, with value-based fees ranging from approximately €3,300 (for cases valued between €500,000 and €750,000) to €431,800 (for cases valued above €50 million)¹⁷. These fees represent increases of approximately 33% at first instance and 45% on appeal from the previous schedule¹⁸. Recoverable costs are also capped by reference to case value, ranging from €38,000 for cases up to €250,000 in value to €2,000,000 for cases exceeding €50 million¹⁹.  Where an infringement action is met with a counterclaim for revocation, the court sets separate ceilings for representation costs on the infringement and validity issues respectively. This means a successful defendant may in principle recover costs up to both ceilings, though the court exercises discretion to ensure costs claimed are reasonable and proportionate, which is likely to prevent double recovery for genuinely overlapping work.

By contrast, UK court fees remain considerably lower. An infringement claim valued at over £50 million attracts a court fee of around £10,000. For an equivalent €50 million UPC claim, the court fee alone would be approximately €444,900, roughly 45 times higher. 

However, day to day running costs of UK patent litigation are typically higher due to more extensive procedures, expert evidence and longer trials.

Another  critical distinction between them is in how and when costs are incurred. UPC procedure is front-loaded, with substantial costs incurred early in preparing detailed Statements of Claim and Defence. UK procedure tends to ramp up costs as proceedings approach trial, with expert evidence and the trial itself being the major cost drivers.​

The higher UPC court fees, combined with front-loading of costs, create a very different settlement dynamic. Although significant upfront expenditure may deter speculative claims, it can also make early settlement less likely. By the time the defendant has even engaged, the claimant will already have incurred substantial costs and may feel compelled to press on. The UK system operates differently. Its more gradual cost profile allows parties to assess the merits and narrow the issues before the most expensive phases of litigation, and the prospect of an eventual costs recovery, based on what the parties have actually spent, also acts as an effective deterrent against weak or opportunistic claims.

Anti-suit injunctions and jurisdictional competition

A significant development since 2023 has been the emergence of competing anti-suit injunction applications between UK courts and the UPC.

The UPC has clarified its own authority to issue such protective measures. In Avago v Realtek²⁰, the UPC held that it has jurisdiction under Article 32(1)(a)(c) UPCA to issue interim measures preventing foreign courts from issuing anti-suit injunctions that would block parties' access to the UPC.

In late September 2025, the Mannheim Local Division issued the UPC’s first anti‑interim‑licence injunction (AILI)²¹: a novel remedy expressly designed to prevent parties from seeking interim‑licence declarations in foreign FRAND proceedings. In an order granted without notice to Amazon, the court prohibited Amazon from pursuing interim‑licence relief in the English Patents Court, reasoning that interim licences would undermine a patentee’s right to enforce its SEPs before the UPC if they were effectively compulsory. The Munich Regional Court issued an analogous order in parallel German proceedings.

The English Patents Court responded swiftly. Mr Justice Meade granted Amazon an anti‑anti‑suit injunction (AASI), carefully designed to protect the English court’s ability to adjudicate final FRAND relief while minimising friction with both the UPC and German courts.

By December 2025, the conflict had intensified. The Mannheim Local Division rejected Amazon's challenge to the original AILI and confirmed it with exceptionally severe penalties: up to €50 million in damages plus €500,000 per day for non-compliance, substantially exceeding the original order and designed to ensure strict compliance²². The English court maintained its AASI in modified form, finding significant risk of further anti-suit applications from InterDigital²³.

​The result is an increasingly contested jurisdictional landscape. With both the UPC and UK courts willing to deploy anti‑suit tools to protect their respective processes, parties must weigh carefully not only whether to seek such relief but where and when to do so. The risk of races to court and escalating procedural conflict is now a defining feature of high‑value FRAND and SEP litigation in Europe.

The UK's unique role in the new European landscape

Writing in December 2022, I suggested that the UK courts would continue to play an important role in a world of UPC litigation. Experience since June 2023 has confirmed this prediction, though the precise contours of that role have emerged differently than some anticipated.

Two and a half years into the UPC's operation, the UK's role in European patent litigation is clearer. Rather than being marginalised, the UK has found a distinctive role that complements rather than competes with UPC litigation:

• Global FRAND: The UK remains the only proven forum for setting global FRAND rates and granting interim licences to prevent hold‑up.
• Procedural advantages: PPDs, rigorous expert cross examination, flexible pleadings that mature post‑disclosure, and settled jurisprudence on complex issues. For cases requiring detailed technical investigation or involving points of fine detail, UK procedure remains attractive.
• Creative remedies: Arrow declarations and cross‑border DNIs are available in the UK; their status before the UPC remains uncertain.
• Costs and tracks: The STS offers cost caps and speed without a damages cap, broadening the UK’s suitability for mid‑tier disputes.
• Alternative locus of validity assessment: A patent upheld by the UPC might still be revoked in the UK, and vice versa. The UK remains an alternative locus for validity and enforcement in a major market.

The UPC has succeeded beyond initial expectations in establishing itself as a credible forum for pan-European patent enforcement. Its speed, broad territorial reach and developing case law make it an important tool in any patent holder's arsenal. Yet the UK has not been diminished by this success. Case numbers have remained stable, FRAND leadership has been consolidated, procedural advantages have been preserved and enhanced, and the creative remedies that distinguish UK practice remain unavailable elsewhere.

The most sophisticated parties will approach European patent strategy not as a choice between UK and UPC but as an exercise in deploying both forums strategically. Parallel proceedings create pressure points and settlement opportunities. Different procedural characteristics suit different types of cases. The ability to pursue validity challenges before multiple decision-makers provides risk mitigation.

The UPC's assertion of long arm jurisdiction over UK patents, far from marginalising UK litigation, may actually increase the importance of UK proceedings as a means of defending UK activities before UK courts. The availability of anti-suit injunctions provides parties with tools to manage jurisdictional competition.

For practitioners, this means that the UK courts still play a crucial part in European patent strategy. Knowing when to bring UK proceedings, whether as the main action, a parallel route, or a way of protecting UK activities, has become an essential part of navigating an increasingly complex enforcement landscape.