Expect patent litigation strategies to be shaped by the UPC in 2026

Below, we examine some of the major developments in UPC case law in 2025 and examine how the position might evolve further in 2026, focusing on three main areas: the expansion of the geographic scope of the UPC’s ruling; the litigation of ‘standard essential’ technology patents; and how pharmaceutical companies may be increasingly encouraged to assert or defend patent claims before the UPC.

Rulings of broad geographic scope

In January 2025, the Düsseldorf local division's (LD) decision in the case of Fujifilm v Kodak explored the scope for obtaining cross-border relief against infringement of patents in force in countries that do not participate in the UPC system. The court determined that the UPC’s ‘long-arm jurisdiction’ enabled it to rule on infringement of a UK designation of a European patent. 

The ability of EU member state courts, of which the UPC is equivalent, to hear infringement cases against defendants domiciled in their country, even if validity is disputed, was confirmed by the Court of Justice of the European Union’s (CJEU’s) ground-breaking decision in the case of BSH Hausgeräte v Electrolux. The CJEU went further, determining that EU courts can rule on the validity of non-EU patents – albeit only on an inter partes basis, in other words in the context of the specific dispute between the parties involved and not to the extent of being binding on foreign courts – to determine infringement. 

These rulings led to various divisions of the UPC adjudicating on rights beyond UPC territories throughout 2025, including the Mannheim LD awarding relief, including damages and a permanent injunction, over the UK in the landmark Fujifilm v Kodak decision.

Subsequent decisions further increased the reach of the UPC’s long-arm jurisdiction. In the case of HL Display v Black Sheep, The Hague LD awarded a broad permanent injunction that spanned UPC countries; countries that have signed but not ratified the UPC Agreement, including Ireland; Lugano Convention countries – Switzerland, Norway and Liechtenstein; and the UK.

In a particularly significant decision, the UPC’s long-arm was also extended to provisional measures, with the Hamburg LD granting a preliminary injunction over non-UPC-participating Spain in the Dyson v Dreame dispute, as well as a Hong Kong-based defendant due to the presence of an EU authorised representative, or anchor defendant, in a UPC country. This decision is under appeal. The hearing took place on 22 January 2026. It is the first time the UPC’s long-arm jurisdiction has come before the UPC Court of Appeal (CoA). A decision is likely before the end of the first quarter of 2026, and is expected to provide some clarity as to, in particular, the role of an authorised representative in bringing international defendants into the UPC’s jurisdiction.

The UPC’s long-arm jurisdiction, as well as the scope of the CJEU’s ruling in the BSH Hausgeräte case, is expected to remain in the headlines in 2026. The latter has empowered some national courts, notably the Munich Regional Court, to award cross-border injunctions in the biosimilar aflibercept disputes involving Regeneron, Bayer and multiple generics companies. Appeals in early 2026 are expected to provide some clarity as to the scope of relief.

Further, the fact that the CJEU’s decision does not appear to be limited to patents governed by the European Patent Convention (EPC) raised questions as to the likelihood of EU national courts determining infringement of non-EPC patents, such as US or Chinese patents. Although many consider that was unlikely to be the intention of the CJEU, also before the Munich Regional Court is another landmark dispute, Onesta v BMW, in which non-EPC patents – namely, US patents – have been asserted. 

A US judge has ordered an anti-suit injunction (ASI) against Onesta, ordering it to withdraw the actions in relation to the US patents before the German court. However, Onesta was granted an emergency stay of the ASI, meaning that, at the time of writing, it did not have to withdraw the cases before the Munich court. However, this is a rapidly evolving dispute, and, more broadly, area of law, that will continue to generate headlines throughout 2026.

Technology patents

Jurisdictional issues in so-called FRAND disputes arose before the UPC and national courts in 2025 too. 

FRAND is a reference to the fair, reasonable and non-discriminatory terms on which standard-essential patents (SEPs) – patents that protect technology believed to be essential to implementing a technical standard – typically must be licensed, to accord with the policies adopted by the standard-setting organisations under whose umbrella the standards are developed.

Since 2024, the UK Court of Appeal has granted a number of interim licence declarations after considering the terms that a willing licensor and willing licensee would agree to enter into an agreement until terms of a global FRAND licence could be determined. In 2025, an interim licence declaration in favour of a SEP holder was granted by the High Court of England and Wales, in the case of Samsung v ZTE. This was overturned on appeal in November 2025 but was seen as being indicative of the English court’s willingness to grant such declarations. This led to friction between the UK courts and the UPC in the intervening period, resulting in the UPC issuing the ‘first-of-a-kind’  anti-interim licence injunction (AILI) on an ‘ex parte’ basis in the case of InterDigital v Amazon, meaning Amazon was not notified of the injunction application nor given the chance to challenge it before the court decided whether to make the order.

The Mannheim LD determined that any UK interim licence declaration would encroach upon its jurisdiction by restricting InterDigital’s ability to enforce its patents before the UPC and could force it to accept a lower FRAND rate contrary to EU competition law.

The High Court in London responded by granting an ex parte anti-anti suit injunction (AASI), preventing InterDigital from seeking measures to prevent Amazon from pursuing a final FRAND determination in the UK. However, the judge, Mr. Justice Meade, aimed to de-escalate tensions by commenting that the AASI should not be seen as hostile to the foreign courts, but was rather aimed at preserving the position from any further applications by InterDigital. Both the AILI and AASI were subsequently upheld, and further applications to both forums are expected in 2026.

The AILI decision highlights the UPC’s willingness to defend its sovereignty in FRAND disputes, which appears at odds with the increasing reach of its long-arm jurisdiction. With jurisdictional issues being a key strategic consideration in all sectors, developments in relation to interim licence declarations and relations between the UK courts and the UPC will be closely monitored throughout 2026. 

Life sciences

While the pharmaceutical sector has remained slow to engage with the UPC, there were signs of change in the second half of 2025 with a gradually increasing number of UPC filings. It is possible that pharmaceutical companies have been encouraged by and increasing certainty offered by UPC CoA decisions, as well as important sector-specific rulings.

In particular, in 2025 the UPC issued decisions relevant to generic and biosimilar manufacturers that need to carefully plan the timing of product launches, particularly when first mover advantage may be worth millions of dollars.

In the case of Boehringer v Zentiva, the UPC CoA provided clarity as to pre-launch activities that may constitute ‘imminent infringement’ of a patent and put launch activities at risk of a UPC preliminary injunction (PI). Each case will turn on its own facts relating to whether the potential infringer can be said to have “set the stage” for infringement – that is, completed all acts aimed at preparing a rival product for launch. The UPC CoA provided reassurance that the application for, and grant of, a marketing authorisation does not amount to imminent infringement, but completion of national procedures, including conducting a health technology assessment, and pricing and reimbursement, might.

The point at which pre-launch activities may amount to imminent infringement is also relevant to medical technology disputes, where obtaining a CE-marking is a pre-requisite for marketing medical devices in the EU. The Hamburg LD confirmed that obtaining and advertising the grant of a CE mark would not constitute imminent infringement on its own, but may when combined with additional, positive launch activities including showcasing products at trade fairs. That decision, in the case of Occlutech v Lepu, aligns with the ‘setting the stage’ approach taken in the Boehringer case.

More PI decisions from the UPC are inevitable throughout 2026. This will help to increase understanding as to when a UPC PI may be triggered – something which is a particularly important issue for the pharmaceutical sector.

Of further relevance to the pharmaceutical sector is the Brussels LD’s decision, upheld following a review in November 2025, in the case of Genentech & Hoffmann La Roche v Organon. In its ruling, the court granted ex parte orders for preservation of evidence and inspection of premises relating to allegations of infringement by Organon’s pertuzumab biosimilar.

The decision is particularly impactful for a number of reasons. Firstly, it is the first use of such measures by a pharmaceutical patent rightsholder. On top of that, though, the case is noteworthy owing to the broad nature of the orders – they cover searches of Organon’s premises in the Netherlands and Belgium, and disclosure of information including samples, photographs, internal documents, manufacturing records – and the significant financial penalty for failure to comply. It further confirmed that the evidence gathered may be used in parallel national proceedings. The orders were also made without hearing the defendant. This illustrates how powerful these measures can be for patent holders in all sectors wishing to shore up their allegations, and the considerable pressure they put on the recipient of such an order. 

Outcomes like as this may result in such measures being increasingly used, not just by pharma patent holders but also more widely, in 2026.

UPC Court of Appeal decisions on inventive step

Other decisions providing increasing confidence to businesses of all types over UPC litigation, were the UPC CoA's first decisions ‘on the merits’, which is where the court hears arguments – and rules – on the substantive legal issues at hand, as opposed to just dealing with preliminary or procedural matters.

In these cases – Amgen v Sanofi and Regeneron as well as Edwards v Meril – the UPC’s approach to assessing ‘inventive step’ was clarified. Patents can only be obtained for inventions if they are new, not obvious, and have an industrial application. To pass the obviousness test, applicants must be able to show that their new product or process delivers an inventive step – i.e. there is a substantive technical advance that someone skilled in the relevant area would not be able to work out easily using their own know-how and information available to them.

The UPC CoA emphasised a ‘holistic’ approach to obviousness, which appears closer to the method used by some national courts rather than the EPO’s strict problem-solution approach (PSA), with the claimed solution deemed obvious when, at the relevant date, the skilled person wishing to solve the objective problem, and starting from a realistic starting point, would – not just could –  have arrived at the claimed solution. This clarification has been welcomed, although a more thorough understanding as to how the framework applies to different types of claim, and different factual scenarios, will come from decisions of the lower courts going forward. 

Other UPC developments to look out for in 2026

Interactions between national courts, the CJEU and the European Patent Office (EPO), the reach of the UPC’s long-arm jurisdiction and how national courts are applying the BSH Hausgeräte ruling will remain at the top of the agenda throughout 2026. These developments have opened up new options for businesses wishing to assert or challenge patents in Europe in 2026, but clarification as to their precise impact remains necessary, and such issues will likely keep the UPC CoA, as well as national appeals courts, occupied in 2026. 

In addition to jurisdictional issues, now that the UPC CoA has clarified the approach to inventive step, attention may turn to other aspects of patent law requiring clarification, such as infringement by equivalence. This is an important topic for all sectors but particularly pharmaceutical litigants. 

The forthcoming opening of the UPC’s Patent Mediation and Arbitration Centre will be a highlight in 2026, particularly given the current lack of certainty as to whether the UPC will determine global FRAND rates in SEP disputes. The role of arbitration in resolving patent disputes has often been viewed as being limited to damages assessments or determining FRAND licensing rates. While, given the existing tensions between the UPC and UK courts in such disputes, it is possible that the UPC may decide to determine a global licensing rate, the inclusion of dedicated FRAND provisions in the PMAC Rules demonstrates the intention to position the PMAC as an alternative forum for resolving such issues.

The impact of the PMAC remains to be seem, but it will be interesting to see whether arbitration will play a role in patent disputes in other sectors going forward.