The UPC Didn’t Kill Parallel Litigation—It Weaponized It

“Never interrupt your enemy when he is making a mistake.” — often attributed to Napoleon, and now, perhaps, to anyone still asking for a stay without a strategy.

For years, European patent litigation rested on a convenient simplification. In some jurisdictions—notably Germany—validity and infringement were institutionally separated. In others—France being the clearest example—they were decided together, within a unified judicial framework. Yet, at the European level, the picture remained divided. Validity was ultimately centralized before the European Patent Office, while infringement remained territorially enforced before national courts. The result was not a coherent system, but a structural tension: parallel proceedings were inevitable, yet rarely fully integrated. They were treated as a coordination problem—a nuisance to be managed, rather than a strategic space to be exploited.

The Unified Patent Court was supposed to resolve this division and, with it, the very logic of forum shopping that had long structured European patent litigation, from German bifurcation to the Italian torpedo. It has done neither. What has emerged is not the disappearance of strategic choice, but its transformation. The UPC has not eliminated parallel litigation. It has reconfigured it—turning what was once a structural inconvenience into a deliberate instrument of procedural control.

The first misconception is therefore the most dangerous: that a stay of proceedings before the UPC, pending an EPO opposition, is somehow the default. It is not. The Court has consistently approached the stay as a discretionary case management tool, not as an automatic consequence of parallel proceedings.1 This is not a detail. It is the axis around which the entire strategy turns. The stay is not a mechanism of institutional deference. It is something to be argued and, increasingly, something to be won or lost.

The formula “rapid decision expected” illustrates this shift, since invoking an accelerated opposition before the EPO is insufficient. What matters is whether that acceleration translates into a credible procedural timeline. The EPO’s own practice confirms this. Its Guidelines expressly allow acceleration of opposition proceedings upon reasoned request, including in the presence of parallel litigation.2 The Boards of Appeal follow a similar approach.3 But acceleration is only the beginning. The persuasive case lies in demonstrating procedural maturity: a developed written phase, imminent oral proceedings, or a realistic proximity to decision.

The practical consequences are immediate. A defendant who seeks a stay without a mature EPO record does not appear prudent; it appears reactive. A patentee who resists a stay is not resisting efficiency; it is preserving pressure. And in patent litigation, pressure is not a metaphor—it is the currency of settlement.

Bifurcation amplifies this logic. Under Article 33(3) UPCA, a division seized with both infringement and a counterclaim for revocation may refer validity to the central division while retaining jurisdiction over infringement. In such a scenario, Rule 37.4 RoP makes clear that a stay is not the default: infringement proceedings may continue, unless the patent is considered highly likely to be invalid. The system thus permits (and structurally encourages) different procedural tempos.

Claim amendments follow the same structural logic. Under Rule 30 RoP, a patentee seeking to maintain the patent in amended form must do more than defend validity: it must establish compliance with the EPC requirements and articulate infringement on the basis of the amended claims. Rule 32 RoP, in turn, allows the defendant to adapt its non-infringement arguments accordingly. The amendment is therefore not a secondary issue. It is a transformation of the dispute itself.

At this point, the sequencing of patent litigation dissolves. There is not a first phase devoted to validity and a second to infringement. There are overlapping layers of argument, interacting continuously. And the party that controls that interaction controls the case. The UPC’s own case law further confirms that parallel proceedings need not converge. The Court of Appeal has accepted that divergent outcomes between the UPC and the EPO are not inherently irreconcilable.4 The system tolerates tension. It does not attempt to eliminate it. From a strategic perspective, this is decisive. Legal uncertainty is not an accident. It is a feature of the system.

It follows that predictions of the decline of national courts are, at best, premature. The UPC’s caseload is increasing steadily, as reflected in its official statistics: 274 cases by February 2024, 538 by October 2024, and 635 by January 2025. But jurisdictional competition remains embedded in the system.5 Recent national case law illustrates that this competition is not static—it is evolving. In its order of 25 September 2025, as corrected on 8 October 2025, the Landgericht München I granted relief extending across 22 foreign jurisdictions.6 The court explicitly relied on the development introduced by the Court of Justice in BSH Hausgeräte, confirming that jurisdiction over infringement may persist even where validity is raised as a defense.7 The Munich court did not present this as an incremental adjustment. It acknowledged a clear departure from prior practice, where cross-border relief would typically be declined once validity was challenged. What emerges instead is a more assertive (and more expansive) exercise of jurisdiction.

Yet this expansion is not without limits. The UPC itself has confirmed that its jurisdiction does not extend to the revocation of designations in non-participating states such as the United Kingdom.8 There is no universal forum. This is the true architecture of the system. Not unification, but organized division. For litigants, the conclusion is unavoidable. There is no “correct” forum in the abstract. There are only sequences of actions, designed to maximize procedural advantage. A patentee does not simply seek an injunction. It determines when and where pressure will be applied. A defendant does not merely invoke the EPO. It decides whether that invocation will delay, weaken, or reframe the case.

Parallel litigation has not disappeared. It has been elevated.

And those who continue to treat the UPC, the EPO, and national courts as separate arenas are no longer just conceptually mistaken. They are strategically exposed.

• 1See Unified Patent Court, Court of Appeal, Orders on Stays and Parallel Proceedings (2024–2026), available at https://www.unified-patent-court.org (official database).
• 2European Patent Office, Guidelines for Examination in the EPO, pt. E-VIII, 5 (2025).
• 3European Patent Office, Boards of Appeal, Notice on Accelerated Processing of Appeals (as amended), O.J. EPO.
• 4

  See UPC, Ct. App., NanoString Techs., Inc. v. 10x Genomics, Inc., order (2023–2024).

• 5

  Unified Patent Court, Case Statistics (2024–2025), available at https://www.unified-patent-court.org.

• 6Landgericht München I [LG München I] [Regional Court Munich I], Sept. 25, 2025, corrected Oct. 8, 2025 (Ger.).
• 7Case C-339/22, BSH Hausgeräte GmbH v. Electrolux AB, ECLI:EU:C:2025:108 (Feb. 25, 2025). See our comments here.
• 8Unified Patent Court, Court of Appeal, Order on Jurisdiction over Non-UPCA States (UK designation), available at https://www.unified-patent-court.org. See also iin this sense our comments on BSH (here).