Structure and change: the UPC stretches forth as patent filings remain steady

Applications hold the course: EPO Patent Index

At the end of March, the EPO released its annual Patent Index report, allowing a raw statistical synopsis of the health and direction of innovation and investment in Europe. From this, it is immediately apparent that following a three-year growth period, total patent applications at the EPO dipped marginally in 2024 (-0.1%) for a total of 199,264. Though broadly persistent overall, this outward stability may belie rebalancing movements within key sectors, principally energy and electronics.

The most prevalent technical field, computer technology, saw 16,815 applications or a 3.35% increase over the previous year. Similarly, electrical machinery, apparatus and energy rose 8.9% to 16,142. Yet these advances were counteracted by a surprising 6.3% drop in digital communication, suggestive of an industry realignment. It may be the case that a stronger focus on artificial intelligence (AI) development and integration is manifested as a slight pivot away from public-facing products and services toward more nascent areas of technology. In time, these advances would likely redound to consumer electronics and mobile networks, amplifying patent activity in this sphere.

The same cannot be said for the trend evident in the health sector. While applications in biotechnology and organic fine chemistry both expanded, respectively climbing 5.4% and 1.5%, medical technology experienced a 3.0% fall, and pharmaceuticals a striking 13.2% plunge. On the face of it, implementing machine learning into research processes would be expected to yield greater patent generation, but such might not be the case in all sectors. One factor behind the drop in innovation could be that pharmaceutical companies are being influenced to hold off until greater legal clarity is achieved on the patentability of AI-assisted inventions.

Though it has been plainly established that AI systems cannot be listed as inventors before the EPO and a multitude of other IP offices, the rules become murky when the technology is used as a tool of research. In 2024, the United States Patent and Trademark Office (USPTO) released its Inventorship Guidance for AI-assisted Inventions, clarifying that "the use of an AI system by a natural person(s) does not preclude a natural person(s) from qualifying as an inventor (or joint inventors) if the natural person(s) significantly contributed to the claimed invention." When it comes to the virtual screening of tens of thousands of candidate substances during drug discovery, that significant contribution is a dense gray area, and uncertainty is risky.

Nevertheless, the prospect of patent eligibility cannot be said to have fully deterred efforts in this direction, as startups Isomorphic Labs and Latent Labs are currently employing computational protein structure prediction based on the AlphaFold platform.

Beyond industry vicissitudes, another standout statistic revealed in the Index is the popularity of the Unitary Patent. Launched midway through 2023, the simplified filing and litigation system saw a 53.3% rise in requests for unitary effect last year: 28,123 compared to 18,344. This figure represented 25.6% of all patents granted by the EPO in 2024. European small and medium-sized enterprises (SMEs) and universities were noted as being especially confident, electing for Unitary Patents at a rate of 57.5%.

Ultimately, and in light of a complex and shifting innovation environment, the general plateau in patent applications should be read as sustained high demand rather than waning output.

UPC wields cross-border jurisdiction

The UPC "shall be deemed to be a court of a Member State," declared the Milan Local Division through the Court of the First Instance on April 8, 2025. This statement is the latest confirmation of the young institution's cross-border competence, making it clear that the UPC is empowered to rule on the infringement of European Patents in third states so long as the defendant is domiciled in a member state of the Agreement on a Unified Patent Court (UPCA). 

The Milan Local Division held this "long-arm jurisdiction" to be pursuant to Article 32 UPCA as well as to Articles 4(1) and 71a and 71b of the Regulation (EU) n. 1215/2012 (recast) as amended by Regulation (EU) 542/2014.

The proceedings at hand concern a European / Unitary Patent for a motorcycle safety garment. Dainese S.p.A. alleges that six parties infringed its exclusive rights, with Alpinestars S.p.A., specifically, impinging upon the European Patent as validated in Spain, a non-UPCA state. Alpinestars moved to dismiss the Spanish part of the complaint, citing a lack of jurisdiction. However, since Alpinestars is based in Italy, a UPC participant, the court determined that its jurisdiction extends beyond the borders of the 18 current members so far as ruling on the infringement of the Spanish portion of the patent is concerned. It should be pointed out that whatever final ruling the Milan Local Division reaches in this litigation will have no bearing on the validity or registration of the patent in Spain.

This decision follows a series of precedential court actions in recent months, not all without controversy.

• The Düsseldorf Local Division set the ball in motion in January of this year with the reasoning it applied to Fujifilm vs. Kodak. The court confirmed its competence to rule on the UK part of a European Patent since all three defendants were based in Germany.
• One month later, the Court of Justice of the European Union (CJEU) set a stronger precedent in BSH vs. Electrolux. Here, the CJEU concluded that "a court of the Member State of domicile of the defendant which is seised […] of an action alleging infringement of a patent granted in another Member State, does still have jurisdiction to hear that action where, in the context of that action, that defendant challenges, as its defence, the validity of that patent, whereas the courts of that other Member State have exclusive jurisdiction to rule on that validity." The Milan Local Division would go on to equate itself with such a seized national court.
• In March, the Paris Local Division went one step further, claiming jurisdiction over a non-UPC-, non-EU domiciled entity by way of an anchor defendant. The court decided that IMC Créations' patent infringement suit could proceed against both Mul-T-Lock France and Mul-T-Lock Suisse because of the former's French domicile.

We will probably not have to wait long to find out whether future case law will look upon the Paris Local Division's conclusion as tenable or an overreach. The UPC's universal jurisdiction in respect to defendants in its member states will only serve to make it a more attractive venue for international litigation.

New Orleans Saints triumph in fleur-de-lis trademark brawl

When we imagine a clash in American football (or just "football" if you are from the United States), the din of raucous crowds cheering on their champions of helmet-cracking violence fills the mind's ear. Still, on occasion, this royal mêlée leaves the gridiron behind to butt heads in the courtroom instead.

On April 14, 2025, a United States Court of Appeals for the Federal Circuit decided the victor in a trademark contest between the New Orleans Saints football team and a man purporting to be a "direct descendant of the Kings of France (Scotland, Aragon, and Castille)." The Court dismissed an appeal against a decision by the Trademark Trial and Appeal Board not to cancel the Saints' registered fleur-de-lis design mark.

Michel Messier of Vermont claimed his alleged lineage granted him IP rights to the floral symbol that had been associated with the French crown since at least the reign of Philip I in 1060 and, apocryphally, as far back as Charlemagne's coronation in 800. Meanwhile, the Saints have been using a fleur-de-lis mark since entering the National Football League in 1967, attaining a registration from the USPTO in 1974 for uses associated with "entertainment services in the form of professional football games and exhibitions."

Thankfully, Chief Judge Moore and Circuit Judges Prost and Stark were not called upon to determine whether blue blood flowed through the plaintiff's veins or he was a pretender to the abolished throne, only the merits of his court filings. "[E]ven if we take as true what he does allege, whether in his amended petition (as we must) or his briefs (which we are not required to do), he has not met his burden to show a concrete and particularized injury sufficient to have standing to press this appeal."

Namely, Michel Messier failed to evidence his – or his family's – commercial use of a fleur-de-lis design in any sector, to say nothing of entertainment services or football. Though he did put forward the possibility of licensing the design in the future, the constitutional doctrine of Article III standing requires a plaintiff to show an injury in fact, not merely a hypothetical or conjectural one, to appear before a federal court. As such, the case was thrown out, leaving the Trademark Trial and Appeal Board's cancellation refusal in place and concluding the brief War of the Lilies.