Introductory Remarks

The launch of the Unified Patent Court (UPC) and the introduction of the European patent with unitary effect (unitary patent), both on 1 June 2023, marked not only a historic milestone in European intellectual property law, but also a major milestone in an effort that began over 60 years ago. The Local Division Munich has rapidly become one of the most active and strategically important divisions of the UPC, having the highest caseload and shaping early UPC case law through several notable decisions. Below is a structured overview of key trends and developments, as well as of open legal questions that the Local Division Munich has either already dealt with or is expected to deal with in the near future. Naturally, this cannot be a comprehensive overview. It must, on the one hand, leave aside some important issues that the Local Division Munich has not (yet) dealt with (eg, infringement by equivalence), yet it must also, on the other hand, look at the overall UPC picture by making reference to decisions of other (local and regional) divisions and the court of appeal.

Case Load and Expansion of Judicial Resources

The Local Division Munich has maintained a high volume of patent disputes (almost 35% of infringement actions as of 1 April 2025), particularly in sectors such as telecommunications, automotive technologies and life sciences. In response to the high caseload, the Local Division Munich established a second panel on 1 June 2024.

Judges of the Local Division Munich

The first panel is chaired by Presiding Judge Dr Matthias Zigann. He is joined by Judge Tobias Pichlmaier, who also became a full-time UPC judge, and one additional legally qualified judge. Both Judge Zigann and Judge Pichlmaier are well-known patent judges with extensive experience from their previous judicial work at the Munich courts.

The second panel is presided over by Judge Ulrike Voß, who concurrently holds the position of Presiding Judge at the Munich Central Division, making her the only UPC judge with two presiding judge positions at the UPC. Joining her on the second panel is Judge Dr Daniel Voß; despite sharing a surname, they are not related. Before her transition to the UPC, Judge Ulrike Voß was Presiding Judge of a patent senate at the Court of Appeals Düsseldorf. Judge Dr Daniel Voß was, and continues to be on a part-time basis, Presiding Judge at the District Court Düsseldorf.

While the authors do not know the specific reasons that the UPC had for assigning Judge Ulrike Voß and Judge Dr Daniel Voß from Düsseldorf as judges of the second panel (if any), the Local Division Munich now benefits from legal views from both Düsseldorf and Munich.

The dual-panel structure and the growth of personnel allows the Local Division Munich to deal with the ever-increasing workload while maintaining the quality and speed of its judicial processes.

Jurisdiction of the UPC for the Period Prior to the Entry Into Force of the Unified Patent Court Agreement (UPCA) and Substantive Law to Apply – No Decision by the Local Division Munich So Far

Two of the most basic questions regarding the UPC are whether and to what extent it has a long-arm jurisdiction, and which substantive law should be applied, in particular to classic European bundle patents in different periods of time. It is common ground that the jurisdiction to hear the case must be strictly distinguished from the determination of the substantive law applicable to an alleged infringement.

The Local Division Munich has clarified that the UPC is competent in respect of the entire period of time relevant to an action for infringement – ie, also in respect of acts of use prior to the UPCA’s entry into force and prior to the withdrawal of any declared opt-out (Esko-Graphics Imaging v XSYS, UPC_CFI_483/2024, order of 10 February 2025). According to the Local Division Munich, the competence of the UPC is reinstated upon the withdrawal of an opt-out and then extends back in time for an unlimited period. The Local Division Munich specifically left open the question of which law will apply to acts that took place before the UPCA’s entry into force or during any opt-out period. According to the Local Division Munich, the questions of the UPC’s competence and of applicable law are different issues and must be considered separately (in a decision on the merits and not just – as in the decided case – on the objection).

Other local divisions, such as the Local Division Mannheim in its decision Hurom v NUC Electronics of 11 March 2025, went further and found that, when determining the applicable substantive law, the fundamental principles governing retroactivity – being enshrined and recognised in European law and international law – have to be respected. It stated that, considering these principles with regard to the determination of whether substantive law as laid down in the UPCA or substantive national laws of the UPCA member states apply to acts allegedly infringing traditional European bundle patents:

• the substantive law as laid down in the UPCA applies to acts committed after the entry into force of the UPCA;
• the substantive national laws apply to acts committed before the entry into force of the UPCA; and
• the substantive law as laid down in the UPCA applies to ongoing acts started before the entry into force of the UPCA and continued after the entry into force on 1 June 2023.

With regard to ongoing acts, however, to avoid potential hardship, the party concerned may rely on the provisions of the respective national law in force prior to the entry into force of the UPCA with regard to acts of past use – ie, before 1 June 2023. Thus, a defendant may defend itself by pointing to advantageous provisions of the respective national law, and a claimant may base its claims on provisions of national law being favourable to its position compared to the provisions of the UPCA and the Rules of Procedure (RoP). In both cases, the party that advances the argument based on national law has to elaborate on such rules of national law and set out, with a sufficient degree of substantiation, why that rule of national law supports its argument. In other words, it is not for the UPC to determine and analyse the legal arguments based on various national laws ex officio.

It remains to be seen which approach the Local Division Munich and other local and regional divisions, and of course the court of appeal, will take in the future.

Preliminary Injunction (PI) Proceedings

The Local Division Munich appears to be a front runner when it comes to PIs. So far, the Local Division Munich, as well as other divisions of the UPC, have shown that they are prepared to deal with complex legal issues in PI proceedings, despite the tight timeframe. They provide a detailed examination of the validity of the patent in suit, whereby the Local Division Munich asks defendants to present only their three best invalidity arguments in order not to overload the summary proceedings (eg, Syngenta v Sumi Agro, UPC_CFI_201/2024, order of 27 August 2024). In particular, it is not necessary for the patent in suit to have survived opposition or validity proceedings to form the basis of a PI (Mammut v Ortovox, UPC_CoA_182/2024, order of 25 September 2024).

The UPC reaffirmed on several occasions its “more likely than not” approach, initially developed by the Local Division Munich in 10x Genomics v NanoString (UPC_CFI_2/2023, decision and orders of 19 September 2023) and applied to all requirements relevant for assessing PI applications, in particular that the patent in suit is valid and infringed.

The UPC’s Court of Appeal denied that there is a strict time limit for undue delay (which would be detrimental to urgency), but affirmed that this question depends on the circumstances of each case. The question is always whether the applicant’s conduct as a whole justifies the conclusion that the enforcement of its rights is urgent (or not). In the decided cases, PI requests submitted within one to two months after having all the knowledge and evidence at hand that enable the applicant to file a PI request with a reasonable prospect of success were not considered late, unlike PI requests submitted after six months.

Irreparable harm is not required to justify a PI, but it is sufficient that the interests of the applicant (who bears the burden of proof) outweigh those of the defendant. A loss of market share or a delay in filing the main proceedings may be relevant criteria.

The Inventive Step Standard: European Patent Office (EPO) Problem-Solution Approach (PSA) Adopted by the Local Division Munich

The assessment of inventive step is a cornerstone of patentability within the European patent system. Consequently, setting the criteria by which the UPC applies in evaluating inventive step is of significant importance. On the one hand, one may assume that the UPC would adopt the same criteria as the EPO, which originally granted the European patents. On the other hand, the UPC has the autonomy to develop its own criteria and establish an independent body of case law.

After the first 18-plus months of the UPC’s operation, several decisions have been issued that provide insights into the assessment of inventive step. All the decisions appeared to be an initial indication only and pointed to the UPC, unlike the EPO, requiring a “realistic starting point” in the prior art and not adhering to the concept of selecting a “closest prior art” document for the assessment of inventive step. This at least suggested that the UPC does not (strictly) apply the EPO’s PSA; the approach taken by the UPC appeared to resemble that of the German Federal Court of Justice.

In the judgment that led to its second Edwards Lifesciences v Meril injunction, issued on 4 April 2025 (UPC_CFI_501/2023), the Local Division Munich held that the PSA is the “official test” for determining the presence of an inventive step. The Local Division Munich found that for assessing whether an invention shall be considered obvious, the PSA developed by the EPO shall primarily be applied as a tool to the extent feasible to enhance legal certainty and further align the jurisprudence of the UPC with the case law of the EPO and the boards of appeal.

The aforementioned decision was a landmark ruling, subject to what the court of appeal will make of it, as the Local Division Munich, with its judicial gravitas, advocates for the PSA. It favours the PSA over, for example, the “German” approach, albeit that these two approaches are similar and very often lead to the same assessment results anyway.

Standard-Essential Patent (SEP) Litigation: Evolving Case Law

SEPs have long been a hot topic in patent law and are now attracting even more attention after the European Commission scrapped the controversial EU SEP Regulation in early 2025. With its broad jurisdiction, the UPC is likely to become a major battleground for SEP disputes.

The Local Division Munich is emerging as one of the key venues within the UPC – if not the key venue – for SEP disputes before the UPC. Of the three SEP cases decided by the UPC so far – with more initiated but no longer pending – two have been decided by the Local Division Munich. New cases were filed there as recently as late March 2025.

In the first case, Philips v Belkin, the Local Division Munich found that Belkin had infringed a Philips patent relating to a wireless charging standard. Fair, reasonable, and non-discriminatory (FRAND) issues were not part of that dispute, unlike in the two subsequent cases.

The second case, Panasonic v Oppo, was decided by the Local Division Mannheim on 22 November 2024 (UPC_CFI_210/2023). This was the first time the UPC made a substantive and comprehensive decision on FRAND.

In the third case, Huawei v Netgear, the Local Division Munich issued a cross-border injunction covering seven countries. In this decision, the court addressed both SEP holder and implementer obligations under the FRAND framework. It concluded that Netgear was an unwilling licensee and had infringed a valid SEP. The ruling aligns in many respects with the Panasonic v Oppo decision but also introduces distinct considerations, reflecting the Local Division Munich’s own approach.

In late March 2025, two lawsuits in Huawei v MediaTek were initiated before the Local Division Munich (and, from what the authors can see, also a third one before the Local Division Mannheim), further intensifying the multi-jurisdictional SEP licensing battle between the parties. The outcome of the new cases is expected to contribute significantly to the evolving case law on SEPs and the FRAND obligations of the Local Division Munich and the UPC, and even beyond. It is noteworthy that the standard of the four German judges for finding an implementer to be willing is very high. It is known that since Access Advance v Vestel (District Court Düsseldorf, judgment of 21 December 2021), there has been no willing defendant in Germany.

The Local Division Munich and the Anti-Anti-Suit Injunction (AASI) Offensive

In Huawei v Netgear, the Local Division Munich issued an ex parte AASI, preventing Netgear from seeking an anti-suit injunction (ASI) in the United States (UPC_CFI_791/2024, order of 11 December 2024). Huawei contended that any US order obstructing the enforcement of its SEPs under the UPC’s jurisdiction would effectively infringe its patent rights. The Local Division Munich agreed, citing Article 32 Section 1(c) of the UPCA in conjunction with the Brussels I bis Regulation (EU Regulation 1215/2012). It found that barring a patent holder from enforcing its rights is tantamount to infringement itself. Referring to Articles 17 Section 2 and 47 of the EU Charter of Fundamental Rights, the Local Division Munich emphasised that intellectual property and access to effective legal remedies enjoy strong constitutional protection.

This rather expansive reading of the UPC’s jurisdiction carries practical implications. While Article 32 of the UPCA might appear narrower than certain national statutes, the UPC has demonstrated its willingness to interpret its mandate broadly in order to protect a patentee’s right to litigate. It remains to be seen which approach other local and regional divisions, and of course, the court of appeal, will take in the future.

The 10x Genomics v NanoString Case – From the First Case Ever Heard Before the UPC to a Long-Running Case

Few recent patent battles have featured as many twists and turns as 10x Genomics’ enforcement campaign against its spatial biology competitor NanoString Technologies. The latest development came on 20 March 2025, with the EPO’s opposition division announcing its decision to uphold 10x’s European Patent 4 108 782 B1 (EP’782) – the first unitary patent to be asserted before the UPC – with only minor amendments.

This decision marks the latest swing in the back-and-forth over patent EP’782. The patent was the subject of the UPC’s first-ever PI hearing in September 2023 before the Local Division Munich, which culminated later that month in the court’s first inter partes PI.

At the time, the Local Division Munich concluded that NanoString’s CosMX Spatial Molecular Imager and CosMX reagents for RNA detection likely infringed the patent, and that the patent was likely valid. The court imposed an injunction across 17 European countries. However, in February 2024, the UPC’s Court of Appeal overturned the injunction, finding that there was not a “sufficient degree of certainty” regarding the validity of claim 1 (UPC_CoA_335/2023, order of 26 February 2024). This allowed NanoString to promptly relaunch CosMX – one of its flagship products. To the authors’ knowledge, NanoString is claiming damages for the period it was barred from the market due to the PI; with its decision on that matter, the Local Division Munich might once again write UPC history.

The EPO’s decision will not enable 10x Genomics to seek the re-imposition of the Local Division Munich’s PI. It is, however, important for 10x Genomics as a negative decision by the EPO would have prevented it from pursuing its main UPC proceedings for EP’782. The main infringement proceedings at the Munich Local Division, which were meanwhile stayed, can resume and will, according to the authors’ knowledge, go to trial in September 2025 where 10x Genomics is seeking, inter alia, a permanent injunction.

Cases from the Pharmaceuticals Sector – Local Division Munich

The UPC has made a promising start, with cases from the life sciences and pharmaceuticals sector being presented at the UPC. In particular, the long-running PCSK9 inhibitor dispute between Amgen and Regeneron/Sanofi has featured prominently: Amgen asserted one of its patents on the very first day of the UPC’s existence, 1 June 2023, at the Local Division Munich. Having filed a revocation action against that patent on the same day, Sanofi/Regeneron went on to assert their own PCSK9-related patent against Amgen at the beginning of 2024 at the Local Division Düsseldorf. Relatively few pharma cases followed in the subsequent months, with some being the classic “branded versus generic” disputes, others being “biologics versus biosimilars” disputes, and still others being, surprisingly, “innovator versus innovator” disputes.

In the first quarter of 2025, four new UPC drug/vaccine-related disputes were initiated, including two at the Local Division Munich, apparently one of the “go-to” venues for pharma cases as well. The first case, BioMarin Pharmaceuticals v Ascendis Pharma, pertains to Ascendis Pharma’s prospective achondroplasia treatment, TransCon CNP. In that case, the challenged product is not yet on the market: following positive Phase III data in 2024, Ascendis announced its intention to file its marketing authorisation application to the European Medicines Agency during Q3 of 2025.

The second dispute, Promosome LLC v BioNTech/Pfizer, brings the UPC its first COVID 19-vaccine patent lawsuit. Although Promosome has no rival product on the market, it is seeking royalties from the defendants’ blockbuster COVID-19 vaccine, Comirnaty, based on its messenger RNA (mRNA)-related platform technology.

The third dispute is a PI application in Boehringer Ingelheim v Zentiva, filed in February 2025 with the Local Division Lisbon and becoming the first UPC pharma case outside of German divisions.

The fourth dispute consists of a set of two infringement actions in Genevant Sciences/Arbutus Biopharma v Moderna before the Local Division The Hague. It constitutes the second mRNA-related enforcement campaign launched at the UPC. Most interesting of all, these UPC actions seek injunction and damages for 29 European countries, including five EU countries that are not participating in the UPC and six non-EU countries.

It remains to be seen whether these disputes mark a turning point for pharmaceutical companies and their use of the UPC. So far, companies from the pharmaceuticals sector have generally been very cautious, largely due to the risk of centralised revocation of their “crown jewel patents” protecting compounds. It has so far remained common for pharma patentees to assert their patents on a country-by-country basis across Europe, meaning that national litigation continues to play a significant role in this field. This trend is likely to continue in the near future.

Patent Owner-Friendly?

The many cases filed with the Local Division Munich tell a tale of the division, and its judges, generally being considered “patent owner-friendly”. Yet, both panels are very demanding when it comes to inducing the parties to fully plead their case, and also regarding facts.

Conclusion

As a new player in the field of patent litigation, the UPC is still in the process of establishing its role and defining the scope of its activities, and the Local Division Munich plays a very important role therein.

A (wider) analysis of recent decisions and emerging trends indicates that the UPC is on the way to positioning itself as an efficient venue for resolving patent disputes within the given legal framework. This is evident both in its rather broad interpretation of its jurisdiction, and in its readiness to assert extensive powers under the UPCA. It appears that, in line with its objective, the UPC is becoming a key component of the European patent landscape, offering users a unified, effective and transparent litigation forum.