Introduction
Before June 2023, structuring a European FTO was relatively well-understood. You covered the national designations of European patents in the jurisdictions that mattered commercially — Germany, France, the Netherlands, the UK, Italy — plus any national patents filed directly at domestic patent offices. Each patent was enforced nationally. Each jurisdiction required a separate FTO assessment.Â
The UPC changed this. European patent protection now comes in two structurally different forms that require different FTO treatment. Patents within the UPC system can be enforced through a single UPC action across all participating states. Patents opted out of the UPC system are enforced nationally, as they always were. A complete European FTO has to account for both — and knowing which form applies to each blocking candidate is now a core component of the FTO scope.Â
As our review of how the Unified Patent Court is reshaping European IP covers, the UPC has moved faster and more aggressively than many predicted. The enforcement landscape that European FTO needs to account for is meaningfully different from what it was in 2022.Â
The New European Patent Landscape: Two Parallel SystemsÂ
Unitary patents and UPC-system enforcement: The Unitary Patent is a new form of European patent protection that takes effect across all UPC participating states with a single grant. A patent holder who obtains a Unitary Patent holds one right enforceable through the UPC across 17+ member states simultaneously. For FTO purposes, a Unitary Patent in the relevant technology space represents pan-European blocking risk that a single UPC action can enforce.Â
Traditional European patents within the UPC system: Traditional European patents granted by the EPO that have not been opted out also fall within UPC jurisdiction. Their owners can enforce them through the UPC rather than national courts. For a traditional EP patent that has not been opted out, the enforcement picture is the same as for a Unitary Patent — the patent holder can seek pan-European relief through a single UPC filing.Â
Opted-out European patents: national enforcement only: European patent owners can register an opt-out that removes their patent from UPC jurisdiction. An opted-out patent can only be enforced through national courts, as under the pre-UPC framework. For FTO purposes, opted-out patents require the same jurisdiction-by-jurisdiction assessment as pre-UPC European patents. Opt-out status is therefore a critical FTO input: it determines which enforcement framework applies to each blocking candidate.Â
What the UPC System Means for FTO ScopeÂ
Opt-out status is the central FTO input: For every European patent identified as a potentially blocking candidate, the first FTO question is whether it is within the UPC system or opted out. This determines whether the blocking risk is pan-European (single UPC action) or national (country-by-country). UPCA opt-out status is registered in the UPC Case Management System and is publicly searchable.Â
UPC local division geography matters for risk assessment: The most active local divisions — Munich, Düsseldorf, Paris, The Hague, Milan — have different procedural timelines and enforcement tendencies. The relevant local division’s approach to preliminary injunctions affects the FTO risk assessment for each blocking candidate.Â
UPC preliminary injunction speed amplifies FTO risk: The UPC can issue preliminary injunctions across all participating states within weeks of filing. For a product launching in multiple European markets simultaneously, a UPC-system blocking patent represents a more acute risk than a nationally enforced patent — because enforcement can halt sales across all markets through a single action on a compressed timeline.Â
PRACTICAL NOTE: As of mid-2026, approximately 40% of traditional European patents in major technology sectors are within the UPC system. The proportion varies by sector: pharma and medtech have higher opt-out rates; electronics and engineering have lower opt-out rates. Sector-specific opt-out pattern data should inform the FTO scope calibration.Â
What National Patent Rights Mean for FTO ScopeÂ
Opted-out European patents: An opted-out traditional EP remains enforceable nationally in each country where it has been validated. The pre-UPC country-by-country enforcement framework applies. Each validated country requires a separate assessment of whether the patent is actively maintained and whether its claims have been amended in national proceedings.Â
National patents filed directly at domestic offices: Many major European patent holders file national patents directly at domestic patent offices alongside their European patent strategy. In Germany, DPMA-filed national patents are significant in engineering and automotive technology. In France, INPI filings cover pharmaceutical and chemical technology. A European FTO that covers only EP patents misses this layer of national filing activity.Â
Non-UPC jurisdictions: UK, Switzerland, Norway: The UK, Switzerland, and Norway are not UPC participating states. Patents in these countries are not subject to UPC jurisdiction and require separate national assessment. For products with significant commercial exposure in these markets — particularly the UK and Switzerland in pharma and medtech — national FTO coverage is a separate workstream from the UPC-system analysis.Â
How to Structure a Complete European FTOÂ
Structuring a complete European FTO in the UPC era requires working through four specific steps. Our guide on when to conduct an FTO search sets out the timing framework — and for European market launches, that timing imperative is amplified by the UPC’s compressed preliminary injunction timeline.Â
- Identify all European patents in the relevant technology space. Run a comprehensive search across EPO-granted patents and Unitary Patents, covering all patent holders including non-obvious holders from adjacent industries with European patent positions in the target technology space.Â
- Check opt-out status for each blocking candidate. For every European patent identified as potentially blocking, check opt-out registration in the UPC Case Management System. Classify each patent as UPC-system (pan-European enforcement risk) or opted-out (national enforcement only). This classification determines the scope of enforcement risk assessment.Â
- Cover national filings in key non-UPC jurisdictions. Run separate national patent searches for UK (UKIPO), Switzerland (IPI), and Norway (Patentstyret) where those markets are commercially significant. Also cover DPMA, INPI, and other major national offices for technology areas where domestic filing alongside European patents is common.Â
- Assess UPC local division preliminary injunction risk. For UPC-system blocking patents where the patent holder is in a jurisdiction with an active local division, assess the preliminary injunction risk timeline and likelihood. This informs the commercial decision about how to manage the blocking risk relative to the product launch timeline.
How Our FTO Service Covers the European MarketÂ
Our freedom to operate service covers the full European patent landscape under the UPC-era framework: EP patent searches with opt-out status verification, Unitary Patent coverage, national filing searches in UK, Switzerland, Norway, and key domestic offices, and preliminary injunction risk assessment calibrated to the UPC local division structure. For companies planning European market launches across multiple jurisdictions, we structure FTO engagements to account for both the UPC-system pan-European risk and the national enforcement picture for opted-out and non-UPC-jurisdiction patents.Â
European FTO now requires covering two parallel patent systems. Our service covers UPC-system patents with opt-out status verification alongside national rights in opted-out jurisdictions and non-UPC markets.  →  Contact UsÂ
Conclusion: The TakeawayÂ
The UPC has created a genuinely new European patent enforcement landscape — one where a single patent can be enforced pan-European through one action, or enforced nationally through multiple separate proceedings, depending on opt-out status. A European FTO that does not account for this distinction is working with an incomplete picture of the enforcement risk each blocking patent represents.Â
The complete European FTO now requires four components: comprehensive EP and Unitary Patent identification, opt-out status verification, national filing coverage for non-UPC jurisdictions, and UPC preliminary injunction risk assessment. Missing any one of them produces a FTO that answers a narrower question than the one the product team actually needs answered
