Are other UPC countries growing fed up with simply exporting cases to the UMC?

Six months after the Unified Patent Court ("UPC") began its operations, we published an entry in this blog entitled The UPC is dead. Long live the UMC!; "UMC" standing for Unified Munich Court.

The author is very grateful and, should add, flattered, by the fact that one of the UPC judges kindly used that entry during a talk at Fordham University on 4 April 2024, in explaining how they had been doing so far. Since then, as far as the distribution of cases is concerned, things have not fared any better. The Munich Local Division and, more generally, the German Local Divisions, have continued to attract the vast majority of cases, and they are eager to take on even more, as shown by the inflation of the number of panels (six already), which has scraped the contours of article 7(4) of the Agreement on a Unified Patent Court ("UPCA"), which states that "The number of local divisions in one Contracting Member shall not exceed four". But who cares? Experience has shown that the law does not top the rankings at the UPC, beginning with the fact that important legal texts for the UPC's operation, such as the Protocol on Provisional Application and the Protocol on Privileges and Immunities of the UPC, have been and are being applied, notwithstanding the fact that their coming into force requires ratification by "France, Germany, Luxemburg and the United Kingdom". As readers will have noticed, it is "acte clair" that they actually mean "France, Germany, Luxemburg and Italy". So, no need for a referral to the Court of Justice of the European Union ("CJEU"), right? Or perhaps it would be a prudent thing to do by those who are enjoying such privileges and immunities, taking into account that the principle that one cannot be a judge in one's own cause ("nemo judex in causa sua") is deeply entrenched in international law and that such Protocol confers the same privileges and immunities than those conferred to the CJEU. Under this light, perhaps the CJEU would be better placed to decide what "France, Germany, Luxemburg and the United Kingdom" means.

Anyway, going back to today's topic,  some will observe, quite rightly, that the replacement of the UPC with the UMC is the natural consequence of the fact that German courts have always been, by far, the courts with the highest number of patent cases in Europe. Others will argue, also quite fairly, that this was not what the architects of the UPC "sold" to other prospective participating countries. They portrayed the UPC as a sort of raffle where all participants would receive precious gifts and, if you were lucky enough, a training center (Hungary) or a Patent Mediation and Arbitration Centre (Slovenia and Portugal) and, of course – and this was the whole point of setting up what was meant to be a plural and cosmopolitan court – cases.

The thing is that, in general, cases have not been forthcoming in divisions other than the German divisions and, to a much lesser extent, the Hague and the Paris local divisions. Some local and regional divisions have hardly seen any cases at all, or very few (Nordic-Baltic, Brussels, Helsinki, Copenhagen, Lisbon, Vienna and Ljubljana), with the Milan local division being somewhere in the middle.  As an aside, the dearth of cases of some local divisions, together with some provisions of the UPCA, have not helped reducing the carbon footprint.

This situation has resulted in an increasing number of people asking themselves whether their states did a wise thing by ratifying the UPCA instead of choosing the best of both worlds for such countries: follow a path that allows their citizens to obtain European patents with unitary effect, like the citizens of any other country, and, at the same time, avoid exporting cases to the UMC, thus avoiding forcing their citizens to have to litigate before an alien and quite complex and costly court system. Of note, considering the small percentage of European patents with unitary effect coming from many of the countries that ratified the UPCA blindly without having really reflected on what that ratification meant for their citizens, for obvious reasons, their citizens are more likely to be defendants than complainants. So, for those countries, ratifying the UPCA did not bring any benefits (their citizens can obtain European patents with unitary effect anyway), whereas it brought a real risk of losing cases to the UMC, as experience has shown. Plus the risk of exporting defendant meat to the UMC – an outcome that countries like Poland and Spain have avoided by staying at bay –. This has allowed their citizens to reap the advantages derived from being able to obtain European patents with unitary effect and, at the same time, avoid the risk of exporting defendant meat to the UMC. Hence, as mentioned above, the best of both worlds. So, why should other countries such as Ireland ratify? To take cases from Ireland to the UMC, to the detriment of the largest chunk of Irish industry and Irish courts?

This increasingly widespread dissatisfaction has come under the radar of the UPC's Administrative Committee, which, at its meeting of 26 February 2026, discussed how to correct the current imbalance in the distribution of cases and decided to seek the views of the relevant stakeholders on how we got here and what can be done to get out of this situation.

The answer to the first part of that question is very easy: the fact that this court was conceived not as a public service, which is what the administration of justice should be, but as a "Rolls Royce"-type self-financed judicial machine where some divisions strive to "attract" as many cases as possible, combined with the ill-designed case distribution system crafted by the architects of the project, has led to the current state of dismay. This is very difficult to fix within the current UPCA framework because it is a systemic structural flaw of the system.

The answer to the second part of that question, within the current UPCA framework, is more difficult due to the UPCA'S legal constraints. However, although the UPCA sets legal limits to the measures one might think of to try to achieve a more balanced and fair distribution of cases, as mentioned earlier, here, the law has not played a very prominent role so far. So, why could not the architects of this edifice – once more – make the UPCA say what it does not really say?

In any event, what is clear is that a correction of this imbalance – within or outside the current framework (the EU trademark model?) – is needed because, as the title of this entry announces, other UPC countries are growing fed up, and rightly so, with simply exporting cases to the UMC.