Patent Litigation Orchestrated

Litigation that moves markets

Litigation in Germany & the UPC: What legal and commercial teams need to know in 2026

Why do companies still choose Germany for patent enforcement even with the UPC in place?
‍German Patent Litigation is a well running, established system. The vast amount of case law provides for a high degree of predictability, and the bifurcated system in which the infringement court does not decide on validity has upsides for the patentee. Given that many new cases are currently filed with the UPC, the UPC’s timetable to a hearing has slowed down, while the national courts have freed up resources and can be just as quick or quicker. In the end, if successful, an injunction (just) covering Germany is still a very powerful tool as the German market is a key market in Europe.

Where do German courts stand on FRAND and SEPs and what should implementers/patentees be ready to do?
‍The central venue for SEPs in Germany remains the Munich Regional Court; it has an established FRAND case law, which requires an implementer to practically demonstrate that it is a willing licensee (undertake serious negotiations; provide counter-offer(s); make deposit(s) etc.). In sum, the FRAND defence has a high threshold, so any implementer should (at the latest) significantly step up its negotiation behaviour when proceedings are actually brought.

What’s changed in the last 24 months, especially for “value” outcomes like injunctions and cash flow?
‍It can be observed that many new cases are filed before the UPC; UPC decisions can cover up to 17 countries (depending on the validation of the patent in suit) – this creates a lot of pressure on the defendant and a lot of cases therefore settle before a judgment is even reached. German Courts want to equally remain an attractive venue; many injunctions are issued. A hot new topic, also in national courts, is long-arm jurisdiction, in which – in certain cases – it may also be possible to assert foreign patent counterparts.

UPC or national German courts, how do we choose?
‍The UPC has big threat and settlement potential. On the other hand, especially for SEPs, the strict timeline regime makes it hard to amend a UPC complaint during litigation, such as including an injunction request at a later stage when all FRAND requirements have been satisfied. Accordingly, the FRAND position should be clear and any required exchange of correspondence, offers and information should take place before a UPC action is filed. If more flexibility is required, a German Court may be a good (parallel) venue, as it offers more flexibility in this regard; an injunction claim may also be included while proceedings are already underway.

What practical steps are advisable for a plaintiff contemplating to bring an action before the UPC or national courts?
‍
Proof of infringement
Before starting any action before a German Court or the UPC, the Plaintiff should, with a view to the front-loaded nature of both jurisdictions, gather all evidence available and (especially at the UPC) present it upfront when filing the complaint. It has to be noted that German Law does not have discovery as such and only offers limited inspection options for fact collection. The UPC holds further options for a plaintiff, such as saisie-type evidence gathering that can be explored prior to actual litigation.

It is advisable to do a validity health check with the patent before assertion (additional prior art search etc.) and to identify any infringement fallback positions, such as dependent claims or potential claim amendments.

If an SEP is to be asserted, it should be assured that the requirements set out in the Huawei v. ZTE decision of the ECJ are satisfied, i.e. an infringement notice and information on the portfolio has been provided and, if requested, a FRAND offer. In this regard, it should be noted that FRAND offers are predominantly by German Courts regarded as offers that fall within a FRAND range, so there is a certain range. As many SEP disputes focus on the FRAND-ness of the offer and its justification, it should be checked ideally upfront if the offer can be justified by comparable licenses and if these can (subject to litigation) be produced under confidentiality regimes.

What misconceptions should we correct?
‍With a view to German Litigation, there is often the misconception that as proportionality requirements were introduced into German Law that injunctions would be more limited. This is clearly not the case: In SEP cases, the patentee typically offers to license the patent under its FRAND commitments, so typically any proportionality discussions fail for availability of a FRAND license.

Equally, in non-SEP cases, the defendant could – if a license were not available – be deferred to design arounds or obtaining a compulsory license (if its product satisfies a particular niche). Accordingly, any application of proportionality considerations would be confined to remote individual cases.