The Unified Patent Court and the cost of a lawsuit.

Since 1 June 2023, the Unified Patent Court (UPC) has heard disputes over European patents, with or without unitary effect Source [1] Source [2]. It is common to the States that have ratified the Agreement of 19 February 2013: 18 in June 2026, according to the European Patent Office Source [3]. Each decision covers those countries in which the patent has effect Source [1]. The losing party generally bears the winner’s reasonable and proportionate legal costs, up to a ceiling Source [1].

The States and patents concerned.

The signatory States concluded the Agreement on a Unified Patent Court in Brussels on 19 February 2013 Source [1]. The Official Journal of the European Union published it on 20 June 2013 Source [1]. The treaty establishes a court common to the countries that are party to it, subject to the same obligations under EU law as any national court Source [1]. According to the French Ministry of Justice, the UPC began operating on 1 June 2023 Source [2]. France had been the second country to ratify the Agreement, on 14 March 2014 Source [2].

In June 2026, the European Patent Office listed 18 participating States Source [3]. They are Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany and Italy. Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia and Sweden complete the list Source [3]. According to the European Commission, Romania has taken part since 1 September 2024, and parties had brought more than 700 cases before the court by February 2025 Source [4].

For a European patent without unitary effect, article 83 opens a transitional period of seven years from the Agreement’s entry into force Source [1]. During that time, an infringement or revocation action may still be brought before a national court. The proprietor may also opt out of the UPC’s exclusive jurisdiction, by notifying the Registry no later than one month before that period ends Source [1].

The court in Paris.

The Court of First Instance comprises a central division, with its seat in Paris, and local and regional divisions Source [1]. The Court of Appeal is based in Luxembourg Source [1]. In 2025, the French patent office (INPI) noted that Paris hosts the seat of the central division of the Court of First Instance Source [5]. The French Ministry of Justice states that France also has a local division in Paris Source [6].

An infringement action goes before the local division of the country where the infringement takes place, or where the defendant has its residence or principal place of business Source [1]. A revocation action, like a declaration of non‑infringement, goes in principle to the central division Source [1]. Faced with a counterclaim for revocation, the local division may decide it, refer it to the central division or, with the parties’ agreement, refer the whole case Source [1].

The Agreement covers only European patents, with or without unitary effect, and a French patent stays with the national courts Source [1]. In France, article L. 615-17 of the Intellectual Property Code sends actions on patents to judicial courts designated by regulation Source [7]. For these disputes, article D. 211-6 of the Code of Judicial Organisation names the tribunal judiciaire de Paris (Paris Judicial Court) alone Source [8]. A European patent with unitary effect, by contrast, falls to the UPC under article L. 615-18 Source [7].

The court’s decisions.

Before any judgment on the merits, the UPC may order provisional and protective measures Source [1]. It may provisionally prohibit the alleged infringement from continuing, subject to a recurring penalty where appropriate, or allow it to continue only against guarantees for the right holder Source [1]. If the recovery of damages appears at risk, it may also order a precautionary seizure of the alleged infringer’s assets and the blocking of its bank accounts Source [1].

When it finds an infringement, the court may prohibit its continuation by the infringer, and by an intermediary whose services are used to infringe Source [1]. Article 63 states that non‑compliance with this injunction is subject to “a recurring penalty payment payable to the Court” Source [1]. The court may also order the recall or destruction of the products, in principle at the infringer’s expense Source [1].

Damages cover the loss actually suffered, and they are not punitive Source [1]. The judge takes into account lost profits, any unfair profits made by the infringer and, in appropriate cases, moral prejudice, or sets a lump sum Source [1]. Actions for financial compensation are time‑barred five years after the claimant became aware, or had reasonable grounds to become aware, of the last fact justifying the action Source [1]. The parties may also settle at any time during the proceedings, and the court confirms their agreement by a decision Source [1].

Court fees.

The court funds its balanced budget from its own revenues, which include court fees Source [1]. Its Administrative Committee, in which each Contracting Member State has one representative and one vote, sets these fees Source [1]. They “consist of a fixed fee, combined with a value‑based fee above a pre‑defined ceiling” Source [1].

The Agreement requires a “right balance” between fair access to justice and an adequate contribution of the parties to the court’s costs Source [1]. It names in particular SMEs and natural persons. The Committee reviews the amounts periodically, and “Targeted support measures for small and medium‑sized enterprises and micro entities may be considered” Source [1].

Each party pays these fees in advance, unless the Rules of Procedure provide otherwise Source [1]. A party that fails to pay them may be excluded from the rest of the case Source [1]. The amount due therefore depends on the schedule the Administrative Committee sets and may review Source [1].

The other side’s costs and security for costs.

As a general rule, the unsuccessful party bears the reasonable and proportionate legal costs incurred by the successful party, unless equity requires otherwise Source [1]. A ceiling, set in accordance with the Rules of Procedure, limits this reimbursement Source [1]. Where a party succeeds only in part, or in exceptional circumstances, the judge may apportion the costs equitably or leave each party to bear its own Source [1].

French law applies the loser pays rule differently. Before the tribunal judiciaire, the losing party bears the court costs (dépens), unless a reasoned decision provides otherwise Source [9]. For other costs, including lawyers’ fees, the judge sets the sum due under article 700 Source [9]. That assessment takes into account fairness or the economic situation of the party ordered to pay Source [9].

At the defendant’s request, the UPC may order the claimant to provide adequate security for the costs it may have to bear Source [1]. Article 69 refers in particular to orders to produce or preserve evidence, freezing orders and provisional measures Source [1]. For a claimant SME, this security comes on top of the fees paid in advance.

Legal aid and representation.

Legal aid at the UPC is open only to a party “who is a natural person” and unable to meet the costs of the proceedings, wholly or in part Source [1]. A company therefore cannot apply for it, whatever its size. Before the court, each party is represented by a lawyer authorised to practise before a court of a Contracting Member State, or by a qualified European Patent Attorney Source [1].

The cost of an action for an SME.

Hello Justice observes, in the cases it reviews, that high‑stakes proceedings cost from €30,000 to more than €300,000 in fees and costs, over two to four years, sometimes longer. Below €100,000, such spending becomes disproportionate to the sums in dispute, which sets the lower limit of mid‑market litigation.

The European Patent Office expects the UPC to lower costs, as parties no longer need to litigate in parallel in several countries Source [10]. A single decision covers each Contracting Member State in which the patent has effect Source [1]. Choosing between the UPC and a national court, like deciding to opt out, rests with the proprietor and their lawyer. Our article on how long civil cases take in France gathers the published figures for the national route.

Funding a patent infringement action.

Hello Justice is the first French company dedicated to mid‑market litigation funding, from €100,000 at stake. It has more than 600 live cases, taken on since 2024. It reviews commercial disputes, including the use of a patent without its proprietor’s consent, against an opposing party able to pay a judgment.

The eligibility test gives a first indication in a few questions. Once you submit the case, a specialised partner lawyer analyses its eligibility. They review the features of the dispute, the limitation period (the time limit for bringing a claim), the completeness of the documents and reasonable prospects of success. Not every case is accepted.

The online test and submitting a case are free of charge. Outside the Swiss franc loan programme, the case analysis that precedes any funding costs €1,500 excluding VAT (€1,800 including VAT), whatever the opinion. For an accepted case, Hello Justice pays the lawyer’s fees and receives a commission of 14 to 30% including VAT of the sums recovered, only on success. If the case is lost, the client repays nothing, and the agreement settles how the procedural indemnity under article 700 is handled. A Swiss franc loan is checked free of charge, and the programme, in French, has its own terms.

A lawyer can also present a client’s case, as our guide for lawyers explains. An infringement case can be lost, last longer than expected or end in a judgment the other side does not pay. Before the UPC, the losing party also generally bears the winner’s reasonable costs, up to the ceiling Source [1].

Frequently asked questions.

Can an SME get legal aid before the Unified Patent Court?

No. Article 71 of the Agreement reserves it to natural persons who cannot meet the costs of the proceedings, wholly or in part Source [1]. A company is therefore not entitled to it, whatever its size.

Who pays the other side’s costs if you lose before the Unified Patent Court?

As a general rule, the losing party bears the winner’s reasonable and proportionate legal costs, up to a ceiling set under the Rules of Procedure Source [1]. At the defendant’s request, the court may also require the claimant to provide security for those costs Source [1].

What is the opt‑out from the Unified Patent Court?

It is the derogation from the UPC’s exclusive jurisdiction that article 83 of the Agreement offers the holder of a European patent, during the transitional period Source [1]. The proprietor notifies the Registry no later than one month before it expires Source [1]. The opt‑out can then be withdrawn, unless an action has already been brought before a national court Source [1].