How UPC procedure is reshaping patent tactics: Front‑loaded, fast and unforgiving

Key Takeaway: The Unified Patent Court is no longer an experiment. With filings up sharply and practitioners increasingly confident in using the system, litigation before the UPC is developing its own tactical logic — one that rewards early focus, disciplined argument and technical storytelling that works for both lawyers and engineers.

That was the message from the OxFirst 12^th IP and Competition Forum where, where speakers unpacked how the UPC is changing the way cases are prepared, pleaded and argued.

Momentum — but not a copy of the EPO or National Courts

Dr Wilhelm, a technical judge at the UPC, opened with a clear signal of momentum. Filings in 2025 are already up roughly 45 percent on the previous year, a trend, he said, which reflects growing acceptance of the UPC as a serious litigation forum. But the court is not simply a hybrid of national systems and the EPO. It has its own internal logic — and parties ignore that at their peril.

One of the clearest departures lies in claim construction. Before the EPO, claims are typically given their broadest technically sensible meaning. The UPC, by contrast, treats the patent specification as its own dictionary. Where a term is defined in the description, that definition will prevail. Crucially, the UPC tends to fix claim meaning early and then apply it consistently across infringement and validity, rather than allowing interpretations to drift depending on the issue.

Inventive step without a script

Inventive step is another area where assumptions can mislead. Dr Wilhelm described the UPC’s approach as holistic rather than formulaic. Unlike the EPO’s familiar problem–solution framework, the UPC starts from the invention as claimed and asks what a realistic starting point would have been for the person skilled in the art. Both approaches involve similar analytical steps, he said, and, if applied properly, should often converge. But neither test is hard‑wired into the European Patent Convention. They are guidelines, not rules — and that gives UPC panels room to manoeuvre.

The court’s technical composition reinforces that flexibility. Technically qualified judges sit as full members of the panel, with equal voting rights and the ability to shape legal reasoning as well as technical findings. This integration, Wilhelm said, avoids the delays that plague systems reliant on external technical experts.

Mr Lummer, a Partner at Vossius Brinkhof, translated these doctrinal differences into tactical advice. Arguments on inventive step, he said, should be grounded in engineering reality. What mattered to the skilled person at the time? What alternatives were genuinely on the table? Courts are increasingly skeptical of hindsight reasoning untethered from how engineers actually work.

No hiding place in a front‑loaded system

Dr Rüting, Partner at Vossius Brinkhof, focused on procedure — and its strategic consequences. The UPC offers some scope for forum and language choice, but virtually none when it comes to panel composition. Parties should also expect little early guidance. Unlike the EPO or some national courts, UPC panels rarely issue detailed preliminary views on validity or infringement.

That silence has teeth. The UPC discourages “kitchen‑sink” pleadings, yet its compressed timetable forces parties to put their best case on the table from the outset. There is no comfortable middle ground between over‑pleading and under‑preparing.

Dr Wilhelm was blunt about timing. The UPC is designed to deliver final decisions within roughly 12 to 14 months. That means parties must start early, file comprehensively and then sharpen their case as the opponent’s position comes into focus. Credibility, he said, is earned by showing increasing discipline — not by throwing in new arguments late.

The role of technical judges raised further tactical questions. While their backgrounds inevitably differ, Dr Wilhelm stressed that selection is careful and judges rotate across panels, absorbing different approaches. Dr Rüting added that advocates should remain conscious of technical backgrounds when framing arguments, without assuming they can tailor submissions to a particular judge.

Expert evidence, the panel agreed, will play a role — but a limited one. Experts can be questioned where necessary, yet many cases can be decided on the written record. What matters more than volume of evidence is credibility and coherence.

Clarity beats complexity

The panel closed with practical advice that cut across jurisdictions. The UPC decides cases as a panel, not through a single technical arbiter. Submissions must therefore be intelligible to legally qualified judges as well as technically trained ones. Dense jargon and over‑engineered arguments risk obscuring the core narrative.

As Dr Rüting put it, the most effective cases are built around a single technical story that works for both infringement and validity.

Views expressed at the 12^th IP and Competition Forum are not necessarily those of OxFirst, its employees or affiliates. To assure independence this article was not shared with speakers prior to publication.