Entering the European market: the four questions that decide the timetable

A European market entry is not decided on a risk note. It is decided on four questions which, taken together, determine who controls the timetable: the claimed feature the product works, the acts and entities involved, the evidence the launch creates, and the procedures capable of moving the date. Here is how we handle them.

First question: which claimed feature does the product work?

The question is not about a patent title or a family, but about the construed claim set against the product as it will ship. The work is iterative: the engineers identify the sensitive functions, the search brings up the matching claims and the close reading then sends the technical team back to check a detail of implementation. One version of the software may stay out of reach where the next one falls inside the claim.

Facts must be sorted by how they can be established: what is publicly visible, what is held internally, and what will only come out through a test on the product or through an order preserving evidence. The validity case prepared at that stage, and dated, carries direct procedural value: before the Unified Patent Court, a provisional measure presupposes that the court holds it more likely than not that the patent will survive.

Second question: which acts, which entities, which territories?

The Infrigement attaches to precise acts: making, offering, placing on the market, using, importing, and holding for those purposes. Each must be attributed to an entity and to a territory. Four distinct questions, often conflated, then arise: international jurisdiction, allocation between divisions, the territorial reach of the decision, and the applicable law.

The landscape has moved. The Court of Justice, in BSH Hausgeräte v Electrolux of 25 February 2025, accepted the jurisdiction of the court of the defendant's domicile over foreign parts of a European patent. The UPC Court of Appeal drew the consequences in Kodak v Fujifilm of 2 June 2026, then asked the Court of Justice about the reach of provisional measures against defendants established in third States in Dyson v Dreame of 6 March 2026. Before any launch decision, theopt-out, the chain of title and the national validations are checked document by document: an entry in the register does not by itself prove the legal position of the patent, and the unitary patent does not cover every market targeted.

Third question: what evidence exists, and what evidence does the launch create?

Three records must be kept separately. The technical record, documenting configurations, versions, release dates and design decisions. The launch record, tracing the regulatory and contractual steps completed, the remaining obstacles and the external communications. And the legal analysis, which is covered by the confidentiality of exchanges with counsel and must stay distinct from the other two.

Those records decide imminence. For a generic medicinal product, the Court of Appeal held, in Boehringer Ingelheim v Zentiva of 13 August 2025, that an application for authorisation is not enough, whereas completion of the pricing and reimbursement procedures may be. Symmetrically, the holder's time to act runs from the moment it knew or should have known of the infringement, knowledge that must reach the proprietor entity and not a mere intermediary, as Merz v Viatris of 27 April 2026made clear. A warning letter and a public statement neither start nor stop anything by themselves, they weigh as facts.

Fourth question: which procedures can move the timetable?

The entrant is not condemned to wait for the writ. Therévocation action is brought directly before the central division, without prior opposition, unless an infringement action between the same parties on the same patent is already pending. The action for a declaration of non-infringement is open in the same way, but it is stayed if the holder brings infringement proceedings within three months. The protective letter places the defence arguments before the judge who receives an application, for a renewable period of six months.

The holder has constraints of its own, which are so many levers for the entrant: proceedings on the merits must be started within the period running from the order, security may be required, and compensation is owed if the measure is revoked or if non-infringement is later found. A weak application is expensive and deters no one.

Turning the analysis into operating conditions

The useful deliverable is not a risk note, it is a matrix: for each question, the facts to be established, the consequence for the launch, the person responsible and the event that triggers a review. Two architectures are often worth more than a single opinion: launch the version outside the claim while keeping the next one ready, or launch the full version with the contentious function disabled in the territories concerned. In both cases management keeps its hand on the acts, the evidence and the date, which are the only things through which a patent becomes an injunction.

The decisions cited are tracked one by one in our UPC Litigation Watch and the outcomes by division in our UPC statistics. We work with entrants and their foreign counsel on these decisions, in particular as correspondent in France for patents and the UPC. Contact us.

This article is an updated adaptation of an analysis by Matthieu Dhenne originally published on Kluwer Patent Blog on 22 September 2026: Four Questions That Decide a UPC Market Entry. Official sources: CJEU, 25 February 2025, BSH Hausgeräte v Electrolux, C-339/22 ; Agreement on a Unified Patent Court, OJ C 175 of 20 June 2013.