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I am Rolf Claessen and together with my co-host Ken Suzan I am welcoming you to episode 169 of our podcast IP Fridays!

Today’s interview guest is Prof. Aloys Hüttermann, co-founder of my patent law firm Michalski Hüttermann & Partner and a true expert on the Unified Patent Court. He has written several books about the new system and we talk about all the things that plaintiffs and defendants can learn from the first decisions of the court and what they mean for strategic decisions of the parties involved.

But before we jump into this very interesting interview, I have news for you!

The US Patent and Trademark Office (USPTO) is planning rule changes that would make it virtually impossible for third parties to challenge invalid patents before the patent office. Criticism has come from the EFF and other inventor rights advocates: the new rules would play into the hands of so-called non-practicing entities (NPEs), as those attacked would have few cost-effective ways to have questionable patents deleted.

The World Intellectual Property Organization (WIPO) reports a new record in international patent applications: in 2024, around 3.7 million patent applications were filed worldwide – an increase of 4.9% over the previous year. The main drivers were Asian countries (China alone accounted for 1.8 million), while demand for trademark protection has stabilized after the pandemic decline.

US rapper Eminem is taking legal action in Australia against a company that sells swimwear under the name “Swim Shady.” He believes this infringes on his famous “Slim Shady” brand. The case illustrates that even humorous allusions to well-known brand names can lead to legal conflicts.

A new ruling by the Unified Patent Court (UPC) demonstrates its cross-border impact. In “Fujifilm v. Kodak,” the local chamber in Mannheim issued an injunction that extends to the UK despite Brexit. The UPC confirmed its jurisdiction over the UK parts of a European patent, as the defendant Kodak is based in a UPC member state.

A dispute over standard patents is looming at the EU level: the Legal Affairs Committee (JURI) of the European Parliament voted to take the European Commission to the European Court of Justice. The reason for this is the Commission’s controversial withdrawal of a draft regulation on the licensing of standard-essential patents (SEPs). Parliament President Roberta Metsola is to decide by mid-November whether to file the lawsuit.

In trademark law, USPTO Director Squires reported on October 31, 2025, that a new unit (“Trademark Registration Protection Office”) had removed approximately 61,000 invalid trademark applications from the registries. This cleanup of the backlog relieved the examining authority and accelerated the processing of legitimate applications.

Now let’s jump into the interview with Aloys Hüttermann:

The Unified Patent Court Comes of Age – Insights from Prof. Aloys Hüttermann

The Unified Patent Court (UPC) has moved from a long-discussed project to a living, breathing court system that already shapes patent enforcement in Europe. In a recent IP Fridays interview, Prof. Aloys Hüttermann – founder and equity partner at Michalski · Hüttermann & Partner and one of the earliest commentators on the UPC – shared his experiences from the first years of practice, as well as his view on how the UPC fits into the global patent litigation landscape.

This article summarises the key points of that conversation and is meant as an accessible overview for in-house counsel, patent attorneys and business leaders who want to understand what the UPC means for their strategy.

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How Prof. Hüttermann Became “Mr. UPC”

Prof. Hüttermann has been closely involved with the UPC for more than a decade. When it became clear, around 13 years ago, that the European project of a unified patent court and a unitary patent was finally going to happen, he recognised that this would fundamentally change patent enforcement in Europe.

He started to follow the legislative and political developments in detail and went beyond mere observation. As author and editor of several books and a major commentary on the UPC, he helped shape the discussion around the new system. His first book on the UPC appeared in 2016 – years before the court finally opened its doors in 2023.

What fascinated him from the beginning was the unique opportunity to witness the creation of an entirely new court system, to analyse how it would be built and, where possible, to contribute to its understanding and development. It was clear to him that this system would be a “game changer” for European patent enforcement.

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UPC in the Global Triangle: Europe, the US and China

In practice, most international patent disputes revolve around three major regions: the UPC territory in Europe, the United States and China. Each of these regions has its own procedural culture, cost structure and strategic impact.

From a territorial perspective, the UPC is particularly attractive because it can, under the right conditions, grant pan-European injunctions that cover a broad range of EU Member States with a single decision. This consolidation of enforcement is something national courts in Europe simply cannot offer.

From a cost perspective, the UPC is significantly cheaper than US litigation, especially if one compares the cost of one UPC action with a bundle of separate national cases in large European markets. When viewed against the territorial reach and procedural speed, the “bang for the buck” is very compelling.

China is again a different story. The sheer volume of cases there is enormous, with tens of thousands of patent infringement cases per year. Chinese courts are known for their speed; first-instance decisions within about a year are common. In this respect they resemble the UPC more than the US does. The UPC also aims at a roughly 12 to 15 month time frame for first-instance cases where validity is at issue.

The US, by contrast, features extensive discovery, occasionally jury trials and often longer timelines. The procedural culture is very different. The UPC, like Chinese courts, operates without discovery in the US sense, which makes proceedings more focused on the written record and expert evidence that the parties present, and less on pre-trial disclosure battles.

Whether a company chooses to litigate in the US, the UPC, China, or some combination of these forums will depend on where the key markets and assets are. However, in Prof. Hüttermann’s view, once Europe is an important market, it is hard to justify ignoring the UPC. He expects the court’s caseload and influence to grow strongly over the coming years.

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A Landmark UPC Case: Syngenta v. Sumitomo

A particularly important case in which Prof. Hüttermann was involved is the Syngenta v. Sumitomo matter, concerning a composition patent. This case has become a landmark in UPC practice for several reasons.

First, the Court of Appeal clarified a central point about the reach of UPC injunctions. It made clear that once infringement is established in one Member State, this will usually be sufficient to justify a pan-European injunction covering all UPC countries designated by the patent. That confirmation gave patent owners confidence that the UPC can in fact deliver broad, cross-border relief in one go.

Second, the facts of the case raised novel issues about evidence and territorial reach. The allegedly infringing product had been analysed based on a sample from the Czech Republic, which is not part of the UPC system. Later, the same product with the same name was marketed in Bulgaria, which is within UPC territory. The Court of Appeal held that the earlier analysis of the Czech sample could be relied on for enforcement in Bulgaria. This showed that evidence from outside the UPC territory can be sufficient, as long as it is properly linked to the products marketed within the UPC.

Third, the Court of Appeal took the opportunity to state its view on inventive step. It confirmed that combining prior-art documents requires a “pointer”, in line with the EPO’s problem-solution approach. The mere theoretical possibility of extracting a certain piece of information from a document does not suffice to justify an inventive-step attack. This is one of several decisions where the UPC has shown a strong alignment with EPO case law on substantive patentability.

For Prof. Hüttermann personally, the case was also a lesson in oral advocacy before the UPC. During the two appeal hearings, the presiding judge asked unexpected questions that required quick and creative responses while the hearing continued. His practical takeaway is that parties should appear with a small, well-coordinated team: large enough to allow someone to work on a tricky question in the background, but small enough to remain agile. Two or three lawyers seem ideal; beyond that, coordination becomes difficult and “too many cooks spoil the broth”.

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