How to Serve a Claim before the UPC

Legal framework and case law considerations

The initiation of proceedings before the Unified Patent Court (UPC) requires that a Statement of Claim is validly served on the defendant. This procedural act has significant importance, as it triggers key deadlines, including the period within which the defendant must submit a Statement of Defence.

Legal framework under the rules of procedure

Rules 270–279 of the UPC Rules of Procedure establish a sequence of service methods. The applicable method depends on whether the defendant is located within a UPC contracting EU member state or outside the EU.

Service within UPC contracting member states

Where the defendant is based within a contracting EU member state, the rules envisage a hierarchy of service options. It is generally advisable to proceed through this hierarchy in the order provided.The rules first refer to electronic service on the defendant or their representative. If this does not succeed, recourse can be made to other methods recognized under EU law, such as registered mail. Should these also fail, service may follow the methods available under the national law of the relevant member state.

The choice of service address depends on the defendant’s legal form. For companies, it would typically be the statutory seat, principal place of business, or central administration; for individuals, the usual or last known residence. When multiple defendants are involved, each must be served in accordance with the applicable rules for their location.

Service outside the EU

For defendants located outside the EU, the procedural framework largely mirrors that for service within the EU, but with reliance on international instruments such as the Hague Service Convention. Where these mechanisms prove unsuccessful, the court may—under Rule 275.1 RoP—permit an alternative method of service. Such permission generally requires evidence that conventional methods have been exhausted.

Case law illustrating the application of service rules

The evolving case law of the Unified Patent Court (UPC) provides important guidance on how its rules on service of a Statement of Claim are applied in practice. The Rules of Procedure, particularly Rules 270–279, set out a hierarchy of service methods. Recent decisions from both the Court of First Instance and the Court of Appeal show that the court interprets these provisions strictly, yet with a degree of flexibility when conventional means of service have proven impossible.

One of the early and significant decisions in this area is NEC v. TCL (UPC_CoA_69/2024 and UPC_CoA_70/2024), decided by the Court of Appeal on 29 July 2024. The court was asked to consider whether alternative service under Rule 275.1 could be used without having first attempted service through the standard procedures outlined in Rules 270–274. The Court of Appeal confirmed that the structure of the Rules requires a genuine, procedurally valid attempt at service via the primary methods before alternative measures may be considered. Attempts such as sending documents by email to an executive, or posting notices at the local division, were found insufficient in the absence of prior formal steps or explicit consent from the recipient. The decision also made clear that the UPC is not bound by pragmatic service practices developed in national courts, and that such practices do not create precedents within UPC proceedings.

A comparable insistence on procedural rigour can be seen in Daedalus v. Xiaomi & MediaTek (UPC_CoA_183/2024), decided by the Court of Appeal on 5 August 2024. The claimant had sought to serve Chinese and Taiwanese defendants via their subsidiaries located in Germany, relying on Rule 271.5(a), which permits service on companies with a statutory seat, principal place of business, or central administration in a Contracting Member State. The court rejected this approach, clarifying that the presence of an affiliated company in the EU does not satisfy the requirements for serving a foreign defendant. Instead, service must be effected according to the provisions for parties outside the UPC’s Contracting States, namely Rules 273 and 274, which direct parties towards international service channels such as the Hague Service Convention. The ruling reinforced the principle that corporate group relationships cannot be used to bypass the prescribed service hierarchy.

Flexibility in the court’s approach is clearly illustrated in air up group v. Guangzhou Aiyun Yanwu Technology (UPC_CFI_508/2023 and UPC_CFI_509/2023), decided by the Munich Local Division on 21 January 2025. In this case, all attempts at conventional service, including those under the Hague Service Convention, had failed. Faced with a defendant in China who could not be reached through ordinary channels, the court applied Rule 275.2 to deem earlier, unsuccessful attempts as constituting valid service. This pragmatic application of the rules extended to accepting the publication of the default judgment on the UPC’s own website as a form of effective service. The decision illustrates that, while the court expects strict compliance with the hierarchy of service methods, it is prepared to recognise exceptional measures when it has been convincingly shown that no viable formal route remains.

Practical implications

Taken together, these cases reveal a consistent pattern in UPC jurisprudence. The court gives priority to procedural orthodoxy, requiring parties to follow the established sequence of service methods before seeking alternative approaches. National court practices, even if more expedient, do not override the UPC’s framework.

At the same time, the court has demonstrated a willingness to accept non-traditional forms of service in rare cases where conventional means have been exhausted, and further attempts would be futile. This combination of procedural discipline and pragmatic flexibility reflects the UPC’s aim of balancing due process for defendants with the need to ensure that proceedings can move forward in a reasonable timeframe.