Q4 in Review: US NPE Filings Climb as Top FRAND Venues Push the Envelope

US patent litigation increased substantially in 2024, with NPE filings climbing by 21.6% and operating company filings going up by 16.8%. The Eastern District of Texas also continued to dominate the venue rankings this past year as NPEs avoided two other former hotspots, deterred by pressure over disclosures in Delaware and rule changes discouraging the concentration of patent cases in West Texas.

In Q4, the Patent Trial and Appeal Board (PTAB) found itself at a crossroads with the resignation of USPTO Director Kathi Vidal ahead of the upcoming presidential transition—casting uncertainty over various PTAB reform initiatives pursued by the agency during her tenure. The USPTO also faces ongoing pushback in the courts over the PTAB’s use of discretionary denials under NHK-Fintiv, as some stakeholders urged the Federal Circuit to revisit that practice under a Supreme Court ruling enabling greater judicial scrutiny of some agency actions.

Meanwhile, an even clearer picture of the Unified Patent Court’s (UPC’s) approach to patent litigation has emerged more than 18 months after its launch. Caseload data through the end of 2024 show that German local divisions are still receiving the lion’s share of infringement actions, and that additional NPEs—including some with litigation funding—have waded into UPC waters. Recent decisions have fleshed out the EU court’s approach to key substantive issues including preliminary and permanent injunctions, with one ruling potentially making numerous additional patents eligible for UPC assertion. The UPC also issued its first judgments on fair, reasonable, and nondiscriminatory (FRAND) licensing and related jurisdictional issues in Q4—capping off an especially impactful period for standard essential patent (SEP) litigation that also saw notable developments in the US, Germany, and China.

Additionally, litigation finance is still drawing the attention and ire of certain lawmakers and interest groups, and Q4 saw the introduction of a new bill that, if passed, would require disclosure of third-party funding. Also, two patent-centric bills took divergent paths during the fourth quarter, with one advancing to the Senate floor and the other stalling out in the Senate Judiciary Committee.

Finally, RPX continues to closely monitor public records for evidence of relationships between patent holders and specific third-party litigation funders; it also continuously reviews USPTO data to identify assignments that may portend future patent litigation. Here, we provide entry points into RPX member-exclusive analyses on funded patent litigation and notable patent transactions.

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RPX members are exclusively invited to join a live RPX Community webinar covering highlights from this report. Live sessions are scheduled to accommodate US, European, and APAC time zones starting on January 16 (US session). This webinar may be eligible for CLE credit in some states. Visit RPX Insight to register or for more details.

In the fourth quarter, NPEs added 493 defendants, or 19% more than Q4 2023—falling 1% short of the trailing three-quarter Q4 average for 2021-2023, but exceeding Q3 2024 by 3%. Meanwhile, operating companies added 352 defendants in Q4, a 38% increase compared to the fourth quarter last year. Operating company filings last quarter were 25% higher than in Q3 2024 and were 38% greater than the trailing Q4 average.

Overall, patent plaintiffs added 845 defendants in the fourth quarter of 2024, or 26% more than in Q4 2023 and 11% more than Q3 2024, also beating the trailing average by 13%.

Additionally, the operating company data above leave out another distinct category of litigation filed by a small group of design and utility patent owners targeting copycats and counterfeiters selling products online. RPX excludes such “e-seller” cases from analyses of district court litigation because they tend to follow a different dynamic compared to what one might consider the usual patent suit. These e-seller cases sometimes name hundreds of defendant entities, many of which may be merely online storefronts or aliases for the same ultimate parent. Also, plaintiffs primarily seek injunctive relief instead of damages, and their cases often end with the e-seller defendant’s failure to answer, followed by a default judgment.

This category of litigation, which began to spike in Q3 2020, is shown in grey below to illustrate its magnitude. As shown by the rightmost bar, e-seller litigation in Q4 2024 accounted for 2,679 defendants added, or 76% of all litigation during the quarter—though this number remains subject to the caveat about defendants potentially having multiple online storefronts noted above.

Apart from the following graph, the other analyses in this report exclude pure design patent and e-seller litigation.

In the fourth quarter, the overall and NPE venue rankings were largely the same as for the entire year, except with the Northern District of Georgia holding fifth place for NPE litigation in Q4 (a position held by the Central District of California for the year overall).

The Eastern District of Texas, long a patent hotspot prior to the Supreme Court’s 2017 TC Heartland venue decision, has held onto first place ever since Q2 2023, after separate developments triggered a downturn in NPE filings in both Delaware and West Texas.

–  Delaware Disclosure Debacle Depresses NPE Filings

For the former, the triggering event was a pair of standing orders that Delaware Chief Judge Colm F. Connolly issued in April 2022 that imposed heightened requirements for the disclosure of information on corporate control and receipt of certain funding by the parties in cases before him.

Later that year, patent monetization firm IP Edge LLC found itself in Judge Connolly’s crosshairs after it came to light that several plaintiffs under its control had failed to comply with those standing orders. A resulting battle over transparency ensued as Judge Connolly probed into the business model of IP Edge and its consulting arm MAVEXAR LLC, which in part involved the hiring of individuals not otherwise linked to patent monetization as the nominal managers of its litigating plaintiffs. This pressured IP Edge—once the top patent litigant by volume by a wide margin—to halt its litigation altogether later that year. Other NPEs have apparently followed its lead.

In the meantime, in December 2023, Judge Connolly’s investigation led him to find wide-ranging fraud and ethical violations by those involved. The fallout from that debacle continued well into 2024: In late September, one of the individuals hired to manage an IP Edge plaintiff, a Texas paralegal, failed in her attempt to avoid a $53K contempt fine for her refusal to testify in person before Judge Connolly, who also continued to dole out additional referrals to disciplinary bodies for the attorneys involved in the IP Edge/MAVEXAR scheme.

This past quarter, Judge Connolly’s disclosure rules—and others like them—were also at the center of another dispute in the campaign waged by VLSI Technology LLC, a Fortress Investment Group LLC plaintiff. In July 2024, VLSI found itself before Judge Connolly a second time, and its compliance with his standing orders once again under question, through a declaratory judgment action filed by Intel, the sole defendant in its litigation campaign, which here seeks a judgment that it holds a license to VLSI’s portfolio as the result of Fortress’s acquisition of Finjan, Inc. In October, Intel filed a motion to show cause why VLSI had not violated Judge Connolly’s standing orders through inadequate disclosures, but in December the parties agreed to stay the case after Western District of Texas Judge Alan. D. Albright scheduled a trial on that license defense, in a parallel case, for May 2025.

Meanwhile, another court recently took the relatively rare step of, like Judge Connolly, actually enforcing rules establishing strict disclosure requirements. In a related lawsuit, filed by VLSI against third-party PTAB challenger Patent Quality Assurance (PQA) in Virginia state court and removed to the Eastern District of Virginia, District Judge M. Hannah Lauck ordered PQA to fully comply with a rule requiring LLCs to disclose their “owners or members” after PQA made a filing that fell far short of that requirement. PQA did so under seal, asking the court to bar not only the public but also VLSI from viewing the full list of its members—citing the possibility of “unjust harm” to those members, including “defamatory statements”, “unjust negative press”, and “economic and reputational harm”. VLSI has since fired back, arguing that PQA has failed to overcome the presumption of public access—and that PQA, as the party that removed the case to this district, cannot now complain about being subject to its disclosure rules. Further details can be found here.

–  West Texas Reforms Trim Judge Albright’s Caseload as Another Judge Aims to Fill the Void

The Western District of Texas has slid in the NPE rankings due to case assignment reforms that targeted the former concentration of patent litigation before Judge Albright of the Waco Division, once the nation’s top patent judge. Judge Albright, a former patent litigator who openly sought to attract patent cases to his courtroom, was able to do so with remarkable success as a result of filing rules that let Western District plaintiffs direct their complaints to a specific division, allowing them to pick a specific district judge where the targeted division only has one—here, Judge Albright. The case assignment order changed this by requiring that Waco’s patent cases be randomly allocated among a larger pool of judges, including Judge Albright.

While the district has adopted a policy assigning new cases in existing campaigns to the same judge who oversaw prior suits—meaning that Judge Albright still gets additional filings beyond those randomly assigned to him—the fact that Waco filings are no longer guaranteed to end up before him has undercut the district’s apparent appeal to NPEs.

As a result of these changes, Judge Albright has continued to fall in the rankings of the nation’s top district judges—holding fourth place for 2024, compared to second place in 2023. Since Q2 2024, he has also fallen out of the top five, and his share of the nation’s patent caseload has shrunk each quarter this year—accounting for just 1% in the fourth quarter.

However, the new year could bring significant changes for Judge Albright, who in December confirmed that he will be transferring to the Austin Division to fill one of two vacancies there pending signoff from the Fifth Circuit Judicial Council, which he expects in January. Judge Albright, who practiced as a litigator in Austin, has family in the area, and serves as an adjunct professor at the University of Texas at Austin School of Law, will join District Judge Robert L. Pitman, who has been handling Austin’s patent docket on his own. Commenting on the move, Judge Albright stated that he feels “certain” that Magistrate Judge Derek Gilliland—whom he selected as Waco’s second magistrate judge in 2021 to help handle his then-voluminous caseload—will apply for the soon-to-be vacant district judgeship in Waco, stating that Judge Gilliland would be an “incredibly great person for it”.

Overtaking Judge Albright in the third and fourth quarter, vaulting into third place for Q4, and tying with Judge Pitman for fifth place for the whole year was Western District of Texas Judge David Counts of the Midland-Odessa Division. The reason for Judge Counts’s rise in the rankings, after seeing virtually no patent cases before the Waco case assignment order was imposed, is twofold. First, Judge Counts, also a former patent litigator, notably adopted a patent standing order based in large part on Judge Albright’s, just one week after the Waco order took effect. Second, Judge Counts is the only district judge in Midland-Odessa, which is not currently subject to any patent case reassignment rules like those in Waco.

This means that plaintiffs have been able to target his courtroom, guaranteeing that their cases will be subject to a familiar set of rules, in the same manner that they previously did for Judge Albright. Indeed, Judge Counts’s caseload doubled compared to last year, accounting for 76 defendants added to patent campaigns in 2024. Nearly all of that litigation (95%) was filed by NPEs, around three quarters of which were represented by prolific plaintiff-side firm Ramey LLP.

That said, the approach that Judge Counts will take for certain key issues is not yet clear. For instance, he has not yet granted any contested motions to stay pending inter partes review, which Judge Albright was known for rarely granting; nor any contested motions to transfer, for which Judge Albright has famously adopted a rather restrictive posture (leading to various tangles with the Federal Circuit).

–  Chief Judge Gilstrap to Pass the Torch

Meanwhile, unsurprisingly, the top patent judge for Q4 and 2024 was Eastern District of Texas Chief Judge Rodney Gilstrap, whose seven-year term as chief judge will end on March 1, 2025. Taking the mantle will be District Judge Amos L. Mazzant III, who like Chief Judge Gilstrap was appointed to the bench by President Barack Obama.

Judge Mazzant has stated that he has no plans to change the court’s current case assignment practices, as the Western District of Texas did to undercut Judge Albright’s patent docket. Relatedly, Judge Mazzant has also said that he does not intend to take active measures to encourage the filing of more patent litigation in the Eastern District akin to the outreach by Judge Albright that contributed to that earlier surge of patent suits into his courtroom (though of course, East Texas’s place high atop the venue charts would suggest such outreach is unnecessary). Judge Mazzant has additionally weighed in on the debate over heightened disclosure requirements in some courts, most notably those imposed by Judge Connolly, the incoming chief judge remarking that despite the “differing views” on this issue throughout the country, he believes that “forced disclosure shouldn’t happen”.

Much of that 2024 upswing in this sector came in the fourth quarter, including activity from a variety of different NPE plaintiffs. Among them were several NPEs controlled by prominent patent monetization firms and licensors, all filing litigation over various wireless networking technologies. In early October, Dominion Harbor Enterprises, LLC plaintiff Sovereign Peak Ventures, LLC filed a new case over Wi-Fi access points and routers in its ongoing wireless communications campaign, in which a large portfolio of patents originating with a prominent operating company are at issue. Also targeting various Wi-Fi products was Intellectual Ventures LLC, which tagged two airlines over the provision of in-flight Wi-Fi networks in early November; USTA Technology, LLC, a plaintiff linked to California monetization firm Oso IP, LLC, which added a complaint focusing on modems, routers, and smartphones with 802.11ac support in late October; and Encryptawave Technologies LLC, which is controlled by a firm managed by an IP industry veteran and aimed a pair of late November complaints against Wi-Fi products with WPA2 encryption. Later that month, Acacia Research Corporation also trained its sights on access points, routers, and other networking products—here focusing on the support of ZigBee mesh networking—in a new complaint filed by plaintiff Stingray IP Solutions, LLC, which launched its campaign in 2021.

Also joining the fray in Q4 were plaintiffs associated with notable individuals active in the patent assertion space. One was Nodal Technologies LLC, an entity linked to a patent monetization professional behind a growing number of NPE plaintiffs, which expanded an ongoing cellular networking campaign with a mid-December suit targeting cellular base stations. Moreover, Touchpoint Projection Innovations LLC, a plaintiff tied to a former inventor who in recent years has shifted to the assertion of patents acquired from others, opened up a second campaign in late November focusing on cybersecurity products with remote browser isolation functionality.

Several inventor-controlled plaintiffs also tagged the Networking sector in Q4—including XiFi Networks R&D, Inc., which launched a Wi-Fi 7 campaign in late December; VPN Technology Holdings, LLC, which kicked off a campaign targeting networking software platforms with VPN support in October and added a new complaint in December; and Swarm Technology, LLC, which in mid-December filed a new complaint targeting cloud platforms that utilize certain network management solutions, along with related networking hardware, in an ongoing campaign.

Additionally, Quicker Connections LLC—which is part of a growing web of plaintiffs with backing from the same litigation funder—initiated a campaign targeting high-speed networking products in late December. Quicker Connections is also the latest in a series of NPEs that have asserted patents originating with defunct networking equipment supplier Orckit (later Orckit-Corrigent).

That uptick in AIA review filings comes as the PTAB once again faces headwinds of change in the new year, chiefly as a result of the resignation of USPTO Director Kathi Vidal in the wake of the 2024 presidential election.

Among the most notable developments under Vidal’s leadership was a rehaul of the mechanisms for reviewing certain PTAB decisions and making policy determinations. Vidal’s predecessor, Andrei Iancu, created a body called the Precedential Opinion Panel that had been tasked with deciding matters of “exceptional importance” but lacked the power to correct errors by PTAB panels. Vidal replaced this body with the Delegated Review Panel, an “independent panel” to which the director may delegate the review of PTAB decisions for various reasons, including legal and factual errors. With much of that error correction function having previously falling to the director herself, under her post-Arthrex review power, this new structure enabled Vidal to use that authority to focus more on matters of greater policy significance.

One of Vidal’s most prominent uses of that power was to issue a series of evolving sanctions rulings in response to gamesmanship by two third-party PTAB petitioners, OpenSky Industries and Patent Quality Assurance (PQA), in IPRs against VLSI Technology LLC, a Fortress Investment Group LLC plaintiff. The director ultimately allowed OpenSky and PQA to participate only as silent understudies, with VLSI defendant Intel stepping in as lead petitioner, and ordered OpenSky, but not PQA, to pay attorney fees to the patent owner.

VLSI’s appeal of that IPR, previously stayed pending the outcome of Vidal’s director review decisions, resumed in 2024, the company filing its opening brief—challenging the decision not to dismiss the IPR altogether, the sufficiency of Vidal’s sanction order, the joinder of Intel, and the underlying merits decision—in October. Meanwhile, in February 2024, VLSI sued PQA and Joseph Uradnik, an individual acting as its “authorized representative”, in a Virginia state court action that seeks $3.2M in attorney fees stemming from their alleged actions. That case, since removed to the Eastern District of Virginia, has since become bogged down in issues stemming from PQA’s attempts to resist disclosing information about its ownership and control.

Vidal’s tenure was also notable for her pursuit of PTAB reforms, at first doing so by issuing interim guidance and later shifting to notice-and-comment rulemaking. Perhaps the most controversial of these initiatives were her efforts to rethink the PTAB’s practice of discretionarily denying institution under NHK-Fintiv—a rule first adopted under Iancu that has garnered criticism from frequent defendants for tying the outcome of PTAB petitions to factors that are outside of their control, especially the date when a district court has scheduled a trial in parallel litigation. In April 2023, the USPTO released a sweeping rulemaking proposal that would have codified NHK-Fintiv as well as imposed a standing requirement for PTAB proceedings, among a variety of other proposals. Following extensive feedback, the agency then released a scaled-back proposal in April 2024 that lays out potential rules concerning “serial” and “parallel” petitions as well as validity arguments previously addressed by the USPTO, also creating a separate briefing process for discretionary denials and requiring the filing of pre-institution settlement agreements.

A final rule based on this latest proposal, for which public comments were accepted into June, has not yet been issued. Additionally, as noted in the Policy Update section below, some of the more sweeping changes from the 2023 rules package have been included in a legislative proposal that gained traction in the fourth quarter.

In the meantime, the USPTO still faces an ongoing legal challenge against the NHK-Fintiv rule, which was filed by a series of tech companies in late 2021 and is currently on appeal before the Federal Circuit for the second time. The parties and various amici have sparred over the remaining question in that appeal: whether, as the defendants contend, NHK-Fintiv is invalid because it was not implemented via notice-and-comment rulemaking under the Administrative Procedure Act (APA). Judge Davila dismissed that claim on remand in April 2024, and now the plaintiff-appellants have pushed back in their opening brief on appeal—arguing that the lower court was wrong to conclude that NHK-Fintiv is not a “substantive” rule that is therefore not subject to the APA’s rulemaking requirement. Vidal responded in a brief filed by the USPTO on October 16, contending that NHK-Fintiv is instead a general statement of policy describing how the agency plans to utilize a discretionary power, and that it is not a legislative rule subject to APA rulemaking because the NHK-Fintiv factors “do not alter legal rights or obligations” or “bind private parties” and instead bind only agency employees.

Notably, one of the amicus briefs in support of the plaintiff-appellants—filed by Unified Patents and Zero Motorcycles—seeks to leverage the Supreme Court’s June 2024 ruling in Loper Bright Enterprises v. Raimondo, which ended the longstanding Chevron doctrine that previously required courts to defer to agencies’ interpretation of certain statutes. Here, the amici argue that the USPTO has misinterpreted the intent of Congress through NHK-Fintiv and that under Loper Bright, judicial scrutiny is therefore “not merely justified, it is required”.

–  Institution Rates Decline in 2024 and Q4

Against this backdrop of uncertainty, the AIA review institution rate was 69% in 2024, a slight dip from the year prior (70%). The institution rate in Q4 alone was 61%, down from 69% in that same quarter last year.

–  Reexams Surge in 2024

Another result of the cloud of uncertainty surrounding NHK-Fintiv is that frequent defendants seeking to challenge validity have increasingly relied upon ex parte reexaminations, which among other advantages are not subject to discretionary denials to the same extent.

The number of requests for ex parte reexam went up by 21% in 2020 and then by 53% in 2021. While reexam filings then held steady at roughly 330 requests per year in 2022 and 2023, they climbed substantially in 2024—increasing by 27%. The share of patents with reexam requests that have also been challenged at the PTAB continues to fall, reaching just 20% in 2024—further indicating a shift away from IPR. In addition, 55% of patents with reexam requests have also been litigated in district court, though this marks a drop from 2023 (when that overlap was 61%).

UPC data indicate that Germany’s four local divisions continue to see the most infringement filings, with the Munich Local Division still receiving the majority of those cases. This is likely the result of lingering uncertainty around the UPC’s approach to SEPs and FRAND issues, as gaps in case law at the UPC are expected, for the most part, to be filled by national law in participating EU member states. Thus, patent holders have continued to flock to UPC local divisions located in countries that they view as favorable to their position—Germany in particular.

The UPC also reports that English—which is a language option available in all divisions of the Court of Instance (CFI) as well as the Court of Appeal—remains the predominant language of CFI proceedings, at 53%, followed by German at 39%.

–  NPE Activity at the UPC

Access to UPC pleadings remains frustratingly limited at this time, with third parties/members of the public still generally barred from gaining access to court documents without qualified legal representation. Moreover, it can take weeks for the existence of a new UPC infringement action filed to become a matter of public record.

RPX invests considerable efforts towards making UPC data available to RPX members in a timely manner, with subject matter experts also mining public records for notable background on the plaintiffs, including litigation financing.

The fourth quarter of 2024 saw new UPC infringement actions from several known NPEs, including Adeia Inc. (which in addition to filing at the UPC, has initiated concurrent litigation in the US and Germany against Disney (BAMTech, ESPN, Hulu)); Advanced Standard Communication LLC (a Delaware NPE that RPX has tied to a prominent US litigation funder, and which sued Xiaomi at the UPC); and Fingon LLC (a Texas NPE with apparent funding, this one suing Samsung at the UPC).

Substantive UPC Caselaw in 2024: Injunctive Relief, Opt-Outs, Injunctive Relief—and SEP Licensing

Throughout 2024 and Q4, the UPC continued to issue substantive rulings on a variety of key issues, including its first FRAND judgments—in the process underscoring the court’s advantages for both patent plaintiffs and defendants, and why it has played an increasingly prominent role in multijurisdictional patent disputes.

–  Preliminary Injunctions: UPC Confirms Applicable Standards, Affirms First Ex Parte PI

One issue that has become especially well developed since the UPC’s inception is that of preliminary injunctions (PIs), which are a potent tool for plaintiffs due to the UPC’s geographic reach, due to the speed at which PIs can be obtained, and due to the court’s willingness to grant them on an ex parte basis (i.e., without notice to or a hearing with the defendant). The court has granted around 40-50% of the PI requests decided so far (see here and here), following what JUVE Patents has called a “well-balanced approach”; law firm Pinsent Masons has also stated that no “clear trend . . . has yet emerged” among those decisions.

That said, the UPC has answered some key questions about its handling of PIs, in particular with respect to patent validity. UPC rules establish that the court may consider validity for a PI but do not otherwise lay out any requirements for that analysis, leading some to initially wonder whether the court would set a low bar for preliminary assessments—particularly in light of EU caselaw establishing a presumption of validity for European patents. That has not been the case, however. In February 2024, the Court of Appeal confirmed in 10x Genomics v. Nanostring that a PI applicant must demonstrate validity with “sufficient certainty”, meaning that the patent is more likely valid than not for it to be eligible for a PI.

Other local divisions have clarified that the UPC must not only make its own early assessment as to validity, but must additionally consider whether the EPO is also likely to invalidate the patent (Amgen v. Alexion, Hamburg Local Division); and have held that the court can weigh the amount of prior art as well as whether the USPTO granted a largely identical related patent (Cardo Systems v. Asmax et al., Milan Local Division). Late last year, the Düsseldorf Local Division additionally determined that a patent does not need to have undergone adversarial validity proceedings to be PI-eligible (Ortovox v. Mammut). The Court of Appeal upheld that decision in late September 2024, also marking the first time that the UPC has addressed (and affirmed) an ex parte PI on appeal.

That said, some uncertainties remain—for instance, with respect to whether patent owners can amend patent claims during PI proceedings, an issue for which a split has developed among certain local divisions.

–  Decisions Set Forth Standards for Claim Construction, Inventive Step

Throughout 2024, the UPC also continued to flesh out its caselaw on a variety of other substantive issues. Among them was claim construction, with the Court of Appeal confirming that patent claims determine scope at the UPC, the same as national courts (10x Genomics v. NanoString). The Paris Local Division also charted a different course from the EPO on the “inventive step” requirement (“nonobviousness” in US parlance), adopting an approach focused on whether a skilled artisan would “arrive[]” at the invention based on a review of prior art rather than the EPO’s “problem/solution” requirement (Meril Italy v. Edwards). In Q4, the Hague Local Division issued the UPC’s first decision applying a doctrine of equivalents, this one apparently identical to the standard used in Dutch courts. As with other local division rulings of first impression, it may take an appellate decision by the Court of Appeal before some of these standards are adopted across the UPC.

–  Opt-Out Decision Broadens Risk Landscape

One of the most impactful developments this past year was a landmark Court of Appeal decision related to the UPC’s opt-out system, which lets patent owners remove certain European patents from the court’s jurisdiction in order to protect them from revocation claims (since otherwise, such patents can be invalidated for all covered UPC member states in single action). While UPC rules allow patent owners to withdraw opt-outs under certain circumstances, they cannot do so after filing national litigation over those assets. Early caselaw interpreted this prohibition more broadly, to include cases filed in national courts before the UPC’s June 2023 launch. However, the Court of Appeal held otherwise in AIM Sport Development v. Supponor—ruling in November that UPC rules do not bar the withdrawal of an opt-out when the national litigation in question was filed before the court began its operations. Stakeholders have observed that this decision could make a considerable number of patents newly eligible for assertion before the UPC, thereby increasing potential risk for defendants.

–  Final Judgments: Permanent Injunctions and Invalidity Pitfalls

The UPC issued its first merits decision and granted its first-ever permanent injunction in July 2024. Since then, the court’s merits decisions have found both infringement and validity about 60% of the time, reports law firm Bird & Bird, in each case also issuing a permanent injunction. The court has also shown a “flexible approach” to such relief, adds law firm Pinsent Masons, in some instances carving out certain accused products from the injunction issued. Notably, no defendant has yet convinced the court to withhold an injunction, per Bird & Bird.

The potential geographic scope of permanent injunctions at the UPC is a key advantage for patent plaintiffs. However, defendants also have the ability to pursue equally sweeping revocation (or invalidity) claims, so plaintiffs risk losing key assets when asserting them at the UPC. Indeed, the court has reportedly invalidated around four out of ten patents, including all actions involving revocation claims.

A particularly stark example of these pitfalls can be found in one of the UPC’s first cases, filed against NanoString Technologies by 10x Genomics and the President and Fellows of Harvard College (Harvard), in which the Munich Local Division issued the UPC’s first-ever PI—barring two of the defendant’s flagship RNA detection products from sale in all 17 countries then participating in the UPC. That PI and a related US jury verdict prompted the defendant to declare bankruptcy. However, the tables later turned in the defendant’s favor: The UPC Court of Appeal subsequently overturned that PI due to concerns over the patent’s validity, and in October 2024, the Munich Central Division revoked the second of the two patents-in-suit.

–  First FRAND Decisions and Jurisdictional Pushback

Also among the most significant UPC rulings this year were the court’s first two merits decisions dealing with fair, reasonable, and nondiscriminatory (FRAND) licensing issues—demonstrating the court’s growing importance as a standard essential patent (SEP) venue.

The UPC’s first FRAND decision came on November 22, the court’s Mannheim Local Division (Mannheim LD) issuing an infringement ruling and imposing an injunction in litigation filed by SEP owner Panasonic against implementer Oppo. The decision confirmed that the UPC has jurisdiction over FRAND counterclaims and took a deep dive into the proper application of Huawei v. ZTE, the seminal 2015 decision from the Court of Justice of the European Union (CJEU) that laid out guidelines for SEP licensing negotiations. On multiple key points, including Huawei steps concerning the patent owner’s infringement notice (step one) and the implementer’s statement of willingness to take a FRAND license (step two), the Mannheim LD diverged from positions taken by the European Commission, which in April pushed for a more rigid application of Huawei in an amicus brief filed in an unrelated German national court appeal. The court’s second FRAND decision, issued by the Munich Local Division (Munich LD) on December 18, imposed an injunction against implementer NETGEAR for SEP patent) owner Huawei over certain Wi-Fi 6 routers. The judgment adopted largely the same positions on SEP licensing principles as the Mannheim LD’s November decision, also providing additional clarity on the Huawei steps addressing the patent owner’s written offer (step three) and the defendant’s counteroffer (step four).

The Huawei v. NETGEAR decision landed amidst a jurisdictional battle that saw the UPC also face one of its first motions for an anti-suit injunction (ASI). Shortly before the Munich LD issued its judgment in that case, in early December, NETGEAR asked a US court to bar Huawei from enforcing that injunction, prompting Huawei to ask the Munich LD for an anti-anti–suit injunction (AASI) to bar the US ASI and thus protect the UPC’s jurisdiction over the case. On December 11, the Munich did just that, issuing an AASI barring NETGEAR from litigating that motion any further—doing so ex parte (without notice to, or a hearing with NETGEAR).

See below for discussion of another development impacting ASIs.