UPC Weekly brings you timely, thoughtful and joined-up insight into the evolving landscape of patent litigation at the Unified Patent Court.
2026 Week 36
Looking to clear the way? Where a competitor patent stands between you and a product launch, sometimes the only route forward is to get that patent revoked. Opposing the patent at the EPO is cost-effective, but an opposition needs to be filed within 9 months after grant. An alternative, for European unitary patents or European patents that have not been opted out, is a revocation action at the UPC.
A striking thing about the activity at the UPC is the differential between the number of infringement actions and the number of standalone revocation actions. The August 2026 UPC statistics show this again – in 2026 to date 145 infringement actions have been started, with 142 counterclaims for revocation (a defensive manoeuvre against an infringement action) but only 14 standalone revocation actions. In part, maybe, this can be explained by a procedural advantage that favours the patentee – the right to opt-out conventional European patents and only withdraw the opt-out when starting an infringement action. But that doesn’t seem to be the whole story.
Filing a revocation action invites action in response – maybe one or more of a saisie, a preliminary injunction or an infringement action. So: is it possible to have a revocation action filed by another entity at the UPC to protect the identity of the company who really wants to see the patent revoked? Are UPC straw man revocation actions allowed?
Well-established straw opposition practice at the EPO
Straw man oppositions are common at the EPO. Some companies have been set up simply for the purpose of being named as opponent in EPO oppositions. In other cases, it is reasonably normal to see a European patent attorney named personally as opponent.
Under the EPC (Article 99(1)), an opposition can be filed by “any person”. While the EPC itself does not impose any further limitations on this, the Enlarged Board of Appeal (EBA) settled the practice of the EPO in G 3/97. The EBA noted that the EPC does not require the opponent to have an interest in revocation of the patent. This line in G 3/97 stands out to me:
If, for the purpose of opposition, the opponent does not need to show an interest in the invalidation of the patent, then no harm is done if a third party has an interest in the invalidation of the patent.
The EBA did accept that there were some circumstances where a straw man opposition could be circumvention of the law by an abuse of process and therefore render the opposition inadmissible. Earlier decision G 9/93 confirmed that the patentee cannot oppose their own patent, and so using a straw man to achieve the same outcome cannot be allowed. Another situation is where a straw man is used in a way that avoids the need to use an EPO professional representative.
For our purposes here, the key point is that the EBA considered that it is not an abuse of process per se to use a straw opponent merely to conceal the identity of the controlling principal, where that controlling principal would otherwise legitimately have been able to file an opposition.
Straws in the wind at the UPC?
Early on, the UPC contended with a similar question but in more peripheral proceedings: who can access the evidence and pleadings in UPC cases? At least for concluded cases, the UPC Court of Appeal (CoA) decided that any member of the public can, provided that they give a reasoned request. See UPC Weekly 2025 w1.
In Taylor Wessing v. NEC and TCL (UPC LD Munich, 26 August 2025), a law firm sought access to evidence and pleadings, explaining that it was merely interested in the documents for educational purposes. The parties objected that the law firm was acting as a straw man. The LD did not accept that this was true, and held open the possibility that this may be OK even if there were a different motive that was being concealed.
Another relevant point decided in the context of file access requests is that even where a party to proceedings is a UPC representative, they cannot represent themselves – they must use another UPC representative. Also, in case the party is a corporate entity, their UPC representative cannot be a person with extensive administrative and financial powers within the party (UPC CoA, Meril v. SWAT, 12 February 2026).
We can see from this that there are restrictions on the identity or relationship between the party and their representative in UPC proceedings, but that at least for file access purposes, a straw man arrangement is allowed in a practical sense.
What about more substantive UPC proceedings?
Thinking about it, it’s hard to see how a straw man arrangement could work in any substantive UPC proceedings except a revocation action. For any action taken on behalf of the patentee (e.g. infringement proceedings, saisie, preliminary injunction), it remains clear who the patentee is. However, the patentee can of course take actions on behalf of their licensees, without naming those licensees. Another point to note is that these types of action tend to be filed at a local or regional division, whose competence may be derived from the domicile of the parties. Arranging the parties to affect that competence could be open to objection.
On the other side, it is tricky to see how a straw man could file an action for a declaration of non-infringement – the level of detail around the embodiment or activity to be judged as non-infringing would surely point towards the real interested principal.
UPC revocation proceedings naming a straw claimant for revocation do not face the same problems. In terms of jurisdiction, a standalone revocation action is assigned to one of the UPC central divisions. This is not based on domicile of the parties but only based on the technology classification of the patent. The evidence relied on is usually just the prior art and any experimental or expert reports. But what will be the factors that determine whether this is allowed in principle?
Claimant for revocation at the UPC
Several cases at the UPC have dealt with a situation where there is an infringement action pending at a UPC local division against a particular defendant, sometimes with a counterclaim for revocation, and a standalone revocation action is then filed by a related company. Had the standalone revocation action been filed by exactly the same defendant, there would be a problem because Article 33.4 UPCA says that the revocation action should have been filed at the local division handling the infringement action. The central division would have to decline the action.
In Seoul Viosys v. Emporia (UPC CD Paris 1 September 2025), the patentee argued that Emporia was being used as a straw man. Referring back to its own decision in Edwards v. Meril (UPC CD Paris, 13 November 2023), and considering principles of EU law, the CD Paris agreed that it could be objectionable to have a straw man arrangement. One condition for this would be that the named party has no commercial substance and is used solely as a front company or nominee. However, additionally, it would need to be an attempt to circumvent the law:
… the phenomenon of the “straw company” is not irrelevant under European Union law. When such an entity is used to circumvent the application of EU rules or to frustrate the interests those rules are intended to protect, the actions of the “straw company” can be attributed to the party behind it.
In the Seoul Viosys and Edwards cases, the central division decided that the standalone revocation actions could proceed. A similar outcome was seen in ALD v. Nanoval (UPC CD Paris, 26 January 2026).
“Concerned” by a patent?
One big point of difference between EPO oppositions and UPC revocation actions is that the UPC requires the claimant for revocation to be “concerned” by the patent (Article 47.6 UPCA). What does this mean?
In Pari Pharma v. Philips (UPC CD Milan, 27 November 2025), the CD Milan contended with a standalone revocation action with no parallel infringement proceedings. The court decided that there is no requirement at the UPC for the claimant for revocation to show a specific legal or economic interest in the patent. Furthermore, in this case, the claimant was a competitor of the patentee and so the court considered that standing was clear.
What has brought this topic back onto the radar is LS 9 v. Bellissa (UPC CD Milan, 19 August 2026), which takes the scenario one step further because the claimant is a company owned by a law firm. It’s also relevant that there are infringement proceedings at the LD Mannheim and there is clear coordination between the claimant in this case and the alleged infringer. Some initial repair work was done to ensure that the UPC representative was not also in effect in control of the claimant (to avoid the problems identified in Meril v. SWAT). The CD Milan then turned to the question of whether the requirement for the claimant to be “concerned” by the patent was met.
Taking a broad approach, the CD explained that a company’s acts cannot be considered to be private. They are therefore always commercial. A company can always be regarded as being “concerned” by a patent, irrespective of whether they are active in a relevant industry. As a matter of principle, a company has an interest in ensuring revocation of invalid patents.
The CD Milan left open the question of whether a straw man revocation action should be prohibited at the UPC in principle, or only prohibited where it would otherwise result in circumvention of the law. On the facts of the case, the court decided that it had not been proven that the claimant was merely a front. Had it been, then presumably the court would have turned to whether there was circumvention in terms of competence of the central division to hear the case.
Where does this leave us?
First, a caveat: most of the cases referred to here are first instance decisions. As usual, we await definitive guidance from the UPC CoA. But in the meantime, here’s where we stand on the main question: are UPC straw man revocation actions allowed?
Where there are no parallel proceedings for infringement, the CD Milan decision in LS9 v. Bellissa suggests that a straw man revocation action filed by a company should be allowable. Although it may be straightforward for the patentee to show that the claimant for revocation does not have substantive business activities, there may be a good argument that there is no circumvention of the law or abuse of process. With the CD Milan explaining that any company has in principle a legitimate interest in attacking patents in any industry, the requirement to be “concerned” by a patent is automatically met by a company. And with that point dealt with, what laws or procedures are being circumvented? There are no parallel proceedings to cause jurisdictional issues. There is no res judicata problem unless there have been previous proceedings.
The basic question ends up being whether the patentee has a right to know who is really attacking their patent. Is concealment of the controlling principal a circumvention of the law and procedure at the UPC? While the identity of the true interested entity could be relevant to a potential counterclaim for infringement, in reality it ends up being the same question addressed by the EPO Enlarged Board in G 3/97, who concluded that knowing this identity may very well be in the economic interest of the patentee, but such an interest is not necessarily a legal right.
But there are some practical points to remember
For companies considering attacking competitor patents using these types of arrangements, there are some easy points to bear in mind. Using a company as the named claimant for revocation appears to address the “concerned by a patent” requirement, if the logic of the CD Milan holds. But beyond this, consider also the evidence that will be needed for the revocation action. Prior art will need to be independent – relying on your own public prior use is clearly out of the question and any experiments or analysis of prior art products will need to be carried out elsewhere.
There’s an important point on costs. Conveniently, the court fee for revocation is a flat fee but of course the claimant for revocation should not try to rely on reduced fee levels for small entities. Should the revocation action fail, the claimant will need to pay the patentee’s costs for defending against revocation. Therefore it should be expected that the patentee will seek, and be granted, security for costs at the outset of the proceedings. The level of costs exposure will in turn depend on the value assigned to the case, and there are likely to be different views on the value to the patentee compared with the claimant.
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