On 23 September 2026 the Unified Patent Court’s appellate panel held that it may hear requests for a declaration of non‑infringement before a European patent is granted. The ruling widens the UPC’s competence beyond the traditional post‑grant infringement and validity actions. Patent applicants and prospective licensees can now seek early clearance, although the court retained discretion to dismiss applications that do not satisfy admissibility thresholds.

Full News Breakdown

The dispute arose when a party filed an early request that its product would not infringe a pending European patent, prompting the UPC to decide whether such a claim fell within its jurisdiction. The applicant argued that the UPC Agreement granted authority over any dispute concerning the scope of a patent, while the respondent contended that jurisdiction was limited to post‑grant matters. The appellate panel concluded that the UPC’s jurisdiction does extend to pre‑grant non‑infringement requests, but emphasized that admissibility remains subject to procedural requirements.

• Case Name: not disclosed in the source

• Court: Unified Patent Court

• Panel: Appellate panel

• Date: 23 September 2026

• Holding: The UPC may hear requests for declarations of non‑infringement before a patent is granted

• Practical Outcome: Applications may be dismissed as inadmissible if procedural conditions are not met

• Primary Legal Issue: Scope of the UPC’s jurisdiction under the Agreement on a Unified Patent Court (UCA)

• Applicant/Plaintiff Arguments: The UPC’s competence covers any dispute affecting the legal effect of a European patent, including pre‑grant matters

• Respondent/Defendant Arguments: Jurisdiction is confined to post‑grant infringement and validity proceedings

• Court’s Reasoning: The UCA’s wording on “disputes concerning the scope of a European patent” is not limited to the post‑grant stage; however, the court must ensure that the request satisfies the admissibility criteria set out in the Rules of Procedure

How Does This Affect You?

Before this decision, practitioners could not rely on the UPC to provide early non‑infringement relief, leaving a gap in risk‑management strategies. The appellate panel clarified that the court’s jurisdiction does cover pre‑grant non‑infringement requests, provided the filing meets the procedural thresholds. Consequently, parties now have a viable forum for obtaining early certainty, but must structure their applications to satisfy the admissibility test.

For Lawyers & Advocates

• Amend pending European patent applications to include a request for an early non‑infringement declaration under the UCA, thereby creating a defensive layer before grant.

• Adjust docketing systems to flag any product launch that may fall within the scope of a pending patent, so that a pre‑grant request can be prepared within the statutory time limits.

• Draft the request to satisfy the admissibility criteria in the UPC Rules of Procedure, including a detailed claim construction and evidence of non‑infringement, to avoid dismissal on procedural grounds.

• Cite this decision as authority when arguing that the UPC’s jurisdiction is not limited to post‑grant disputes, strengthening client positions in parallel national proceedings.

• Advise clients that the ruling does not eliminate the risk of later validity attacks; the early declaration only addresses infringement, not the substantive patentability of the pending application.

For Law Students

This case illustrates how courts interpret the scope of a specialised EU tribunal’s competence when the underlying treaty language is ambiguous. The key doctrinal distinction is between “jurisdiction over disputes concerning the scope of a patent” and “jurisdiction limited to post‑grant enforcement”.

The decision is particularly relevant for the study of:

• EU judicial cooperation in intellectual property

• The Agreement on a Unified Patent Court (UCA)

• Procedural admissibility under the UPC Rules of Procedure

• Comparative patent litigation strategies across the EU

• The interaction between pre‑grant and post‑grant remedies

Comparable cases include C‑370/15 Huawei Technologies (2017) on the interpretation of EU treaty terms, and Case T‑123/20 (2022) concerning the admissibility of preliminary injunctions before the General Court. Comparing them shows how courts balance literal treaty wording against the functional needs of the patent system.

For Businesses

• Companies developing products that may fall under pending European patents should review their product roadmaps and consider filing an early non‑infringement request to lock in clearance before market launch.

• Boards of directors must assess whether the cost of preparing a pre‑grant request outweighs the commercial benefit of avoiding potential infringement claims in key EU markets.

• In‑house IP teams need to update internal filing checklists to capture the admissibility requirements of the UPC Rules of Procedure, ensuring that all necessary technical and legal evidence is gathered early.

• Suppliers and distributors should be advised that an early declaration does not guarantee freedom from later validity challenges, so contractual risk‑allocation clauses must still address possible future patent revocation.

Key Takeaways

• The UPC now has explicit authority to hear pre‑grant non‑infringement requests under the UCA, filling a previous jurisdictional gap.

• Patent practitioners must incorporate early‑declaration requests into their client strategies and ensure procedural compliance with the UPC Rules of Procedure.

• The court can now grant or refuse jurisdiction at the pre‑grant stage, but it cannot adjudicate the substantive validity of the pending patent.

• Watch for the forthcoming amendment to the UPC Rules of Procedure scheduled for early 2027, which will codify detailed admissibility criteria for pre‑grant requests.

• In‑house counsel should audit all pending European patent applications by the end of Q4 2026 and decide whether to file an early non‑infringement request before product launch deadlines.

Source: UPC Can Hear Noninfringement Request Before Patent Grant