GERMANY Trends and Developments Contributed by: Bernhard Thum, Andreas Mötsch, Jonas Weickert and Frank Eichelhardt, Thum & Partner | Thum, Mötsch, Weickert Patentanw
part of the case assessment to a very early stage of the dispute. A practical pattern is that the court expects focused invalidity submissions and encour- ages parties to concentrate on the strongest points. Urgency is treated as fact-specific rather than as a rigid time bar. Internal decision-making speed there- fore matters: delay can weaken the case for interim relief, while prompt action supports urgency. Inventive step For legal certainty, an important development is emerging convergence towards an EPO-style prob- lem-solution approach for inventive step analysis in some UPC decisions. However, practice is still devel- oping, and parties should not assume complete uni- formity across divisions. For litigants, this means that traditional German and EPO-style arguments are likely to continue to be used side by side. Practical takeaways • Perform claim construction early and consistently across infringement and validity; align mapping and expert evidence to one defensible position. • If interim relief is a real option, prepare validity and infringement in parallel, and document internal timelines to support urgency. Cross - border jurisdiction and extended reach A major development for 2025 and 2026 is increased attention to cross-border jurisdiction. European case law has clarified that a court seized in the mem- ber state of the defendant’s domicile may decide an infringement action even if validity is raised as a defence, while validity as such remains for the courts of the state of registration. The same logic supports addressing certain validity defences relating to pat- ents validated in third countries with only inter partes effect. UPC divisions have begun to apply these principles in ways that can support broader territorial relief in certain scenarios. This expands the strategic reach of UPC litigation but also forces defendants to think more globally about where validity must be challenged to reduce exposure. The practical consequence is that purely national defence strategies are becoming less viable in cross-border disputes.
Practical takeaways • Consider cross-border effects early when selecting forum and remedies; the litigation map may extend beyond UPC states. • For defendants, plan validity actions in non-UPC jurisdictions where exposure is material, even if the UPC hears infringement. Standard essential patents ( SEPs ) and FRAND : global disputes and conduct - based analysis SEPs and FRAND licensing remain strategically impor- tant in Germany, and are increasingly relevant at the UPC. The disputes are highly international and often involve parallel proceedings in multiple jurisdictions. UPC decisions to date suggest a strong focus on party conduct and on whether an implementer is will- ing to take a licence on FRAND terms. This raises the premium on negotiation discipline, documentary trails and coherent global strategy. The broader mar- ket trend is that standards are spreading beyond clas- sic telecoms into sectors such as connected vehicles, energy systems and industrial internet of things. Practical takeaways • Treat FRAND correspondence and negotiation conduct as potential litigation evidence; document a coherent willingness narrative. • Map global exposure and co-ordinate jurisdiction strategy early; fragmented approaches can invite procedural escalation. Life sciences and pharma : cautious adoption and portfolio risk management Life sciences and pharmaceutical companies have generally approached the UPC with caution, largely due to the risk profile of centralised revocation for high-value patents. In technology sectors, UPC use has been more aggressive. For clients, sector context matters. A strategy that is optimal in telecoms or medical devices may not trans- late to originator pharmaceutical portfolios, where the downside of central invalidation can outweigh enforcement efficiency. For some disputes, country- by-country litigation remains a deliberate choice even if UPC efficiency is attractive.
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