Private Law Theory

ABSTRACT
Between 2020 and 2026, the European patent system experienced two concurrent structural disruptions: the United Kingdom’s effective withdrawal from the European Union (31 January 2020, end of the transition period on 31 December 2020) and the entry into force, on 1 June 2023, of the Unified Patent Court (UPC) together with the European patent with unitary effect. This article examines the resulting reshaping of the judicial architecture through the lens of the traditional common law/civil law divide. Three findings emerge. First, the UPC constitutes a sui generis procedural system that combines the continental tradition (written instruction, technical judges) with characteristic common law borrowings (limited cross-examination, orders for production of evidence). Second, the case law of the first thirty months (1,130 first-instance cases, 321 appeals, 66 merits judgments in 2025, based on private consolidations of early 2026; the UPC’s official statistics recorded 883 cases as of end-May 2025, the gap reflecting differences in counting scope and methodology) attests to the emergence of an autonomous European substantive law, notably in Amgen v Sanofi (inventive step test), Plant-e v Arkyne (equivalents) and Meril v Edwards (proportionality of injunctive relief). Third, Brexit, by liberating UK law from the interpretative filter of the CJEU, opens an unprecedented jurisdictional competition between the UPC zone and the UK courts, illustrated by Unwired Planet v Huawei (UKSC 37, 2020) and Thaler v Comptroller-General (UKSC 49, 2023). The BSH Hausgeräte v Electrolux ruling (CJEU, 25 February 2025) extends this reshaping by establishing the long-arm jurisdiction of EU courts over infringements committed outside the EU, including in the United Kingdom. By 2026, the European patent system appears to have settled into a tripolar configuration: the UPC pole (hybridised continental), the British pole (reinforced common law) and the American pole (historical common law under the Alice/Mayo regime). This configuration sheds light on the trajectory of European patent financialisation over the 2020-2026 period.

Tendil, Lysiane, Reshaping the European Patent Judicial Architecture since Brexit and the Entry into Force of the Unified Patent Court (2020-2026): Hybridisation of Common Law and Civil Law (May 25, 2026).