How UPC Preliminary Opinions could reshape Swedish patent litigation

Swedish courts traditionally refrain from providing advance indications of their views in ongoing cases. However, such advance indication might become the norm in the UPC, where preliminary opinions are emerging as an early read on the issues that will decide a case. Here’s what they are, how they operate, and why they matter.

What is a Preliminary Opinion – and How Is It Used at the EPO?
While unfamiliar in Swedish litigation, preliminary opinions are already widely used within the European patent context.

At the European Patent Office (EPO), a decision regarding a patent from the Examining Division can be appealed first to the Opposition Division (OD) and then to the Technical Board of Appeal (TBA). (For further information on the EPO, see fact box below.)

Before an oral hearing, the OD at the EPO will draw attention to and explain the points which in its opinion need to be discussed for the purposes of the decision to be taken. Normally, this includes a provisional and nonbinding opinion of the OD on the positions adopted by the parties and in particular on amendments filed by the patent proprietor (see Guidelines for Examination in the European Patent Office D-VI, 3.2 referring to Rule 116 of the European Patent Convention).

Similarly, Article 15 of the Rules of Procedure of the Boards of Appeal states that in order to help concentration on essentials during the oral proceedings, the Board shall issue a communication drawing attention to matters that seem to be of particular significance for the decision to be taken. The Board may also provide a preliminary opinion. The Board shall endeavour to issue the communication at least four months in advance of the date of the oral proceedings.

Thus, a preliminary opinion in the EPO is a non-binding, provisional assessment by the board. It sets the frame for the issues to be discussed at the oral hearing.  The preliminary opinion typically includes the board’s assessment of the patentability of the claims, any objections raised, and the reasoning behind these objections. The opinion may also address procedural matters, such as the admissibility of late-filed submissions or amendments. The main function of the preliminary opinion is to inform the parties of the board’s current view on the case, highlight the points that are likely to be decisive, and focus the parties’ attention on the matters that require discussion or clarification.

Preliminary Opinions in the UPC Through a Swedish Lens
Up until recently, preliminary opinions would be unthinkable in a Swedish legal context. During the preparatory phase a Swedish court may ask questions to clarify points and may in some instances highlight key issues for the parties to address. But a Swedish court generally does not provide any advance indication of how it will rule in the case or take a position on the outcome in advance.  (The exception being actual provisional decisions such as preliminary injunctions, where the court also emphasises the preliminary nature of the assessment).

This approach contrasts with the way proceedings could be handled within the Unified Patent Court (UPC). The UPC has been in effect since June 2023 and is governed by the Agreement on a Unified Patent Court (UPCA) and the Rules of Procedure of the UPC (RoP).  (For further information on the UPC, see fact box below.)

Preliminary opinions are not mentioned in the UPCA or in the RoP and, to our knowledge, there are no available statistics regarding their use in UPC proceedings at this date (October 2025). Nevertheless, we are aware that in the Nordic-Baltic Regional Division of the UPC the court has used a form of preliminary opinion to guide the parties before oral hearings. Below is an example of such a procedural order issued by the UPC (parties’ names and details to the case have been removed):

Procedural Order issued by the UPC:
”During the presentations the Court expects the Parties to focus on important facts that are disputed (and legal arguments), including:

• For the counterclaim: The Parties are hereby informed that at least the judge-rapporteur is of the preliminary (non-binding) opinion that the patent-in-dispute could be upheld based on auxiliary request 1 (see also the preliminary opinion by the EPO Opposition Division). You may want to discuss in your presentation whether and why the Court should draw a different conclusion in its final decision.
• For the preliminary objection: The involvement of Defendant 2
• For the action on infringement: The interpretation of the feature ”elongated shaft”, the liability for Defendant 2 and the requested remedies (including proportionality and the public interest defence).”

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As can be seen from this procedural order the parties are directed towards the issues the court finds most relevant and are informed of the preliminary opinion of the court on the most likely outcome, as the proceedings currently stand.

Time will tell if this approach will be standardized by the UPC and potentially even codified in the RoP. 

Benefits and Risks of Preliminary Opinions in Practice
There are advantages and potential drawbacks to the use of preliminary opinions.

The issuance of a preliminary opinion is likely to streamline the oral proceedings. Even in cases involving complex issues and multiple possible combinations of prior art, the main hearing at the EPO may be efficiently conducted within a single day, with an oral decision rendered shortly thereafter. This approach contrasts with proceedings in national courts where hearings on patentability alone may extend over several days or weeks and result in a written decision much later: in Sweden six to eight weeks after the hearing and in many jurisdictions much longer than that.

If the parties know beforehand what issues the court deems most significant, they can focus their oral and written submissions, as well as the evidence on those issues, increasing the efficiency and relevance of their advocacy, potentially reducing the volume of unnecessary documentation and expert testimony.

Additionally, if the main hearing is shorter and more streamlined, the cost of the proceedings is reduced. And conversely, if the oral hearings are not guided in any way, the parties are likely to pursue many possible lines of reasoning in the hope that one of them will be persuasive to the court. Such an approach is more costly and is not in line with Rule 113 of the RoP, which states that the UPC oral hearing should normally be completed within one day.

Potential drawbacks include balancing the interests of the parties when it comes to the introduction of new material. When a preliminary opinion indicates that a party is unlikely to succeed, attempts may be made by that party to introduce new arguments or new amendments to the patent claims (auxiliary requests). However, in the UPC, amendments to a party’s case are normally not admissible, see e.g. Rule 30.2 and 263 RoP.

Another potential risk with preliminary opinions is that judges may become anchored to their preliminary assessment, making it harder for parties to persuade the court to change its mind at the main hearing.

Some might also say that the party with whom the court “sides” gains an unfair advantage. The counterargument to that, in our opinion, is that unless you are trying to settle the case, it is more helpful to know in advance if the court is leaning against you. That way you know where to focus your attention when trying to sway the court. You might therefore even say that the party receiving a negative preliminary opinion is unjustly helped by the court, if for example that party is thereby prompted to reshape or at least flesh out its case (provided of course that such change is permitted).

In our opinion, the benefits of the preliminary opinion seem to outweigh the drawbacks in most cases.

Key Takeaway
Preliminary opinions can enhance procedural efficiency, provided that courts actively guard against anchoring effects and ensure compliance with admissibility constraints. They illustrate the UPC’s willingness to draw on established practices, such as those of the EPO. Looking ahead, the UPC’s international panels—bringing together judges from multiple jurisdictions—may catalyse further procedural innovation and the adoption of new tools and practices.

Setterwalls continues to stay at the forefront of developments at the UPC and in patent litigation generally.

Fact box:

• The European Patent Office (EPO) provides a centralized process for obtaining patent protection in up to 39 of the member states of the EPO through a single application. Applicants submit their patent application to the EPO, where it undergoes a European search and publication, followed by substantive examination by an Examining Division.
• If the European patent is granted, it can then be validated in each designated contracting state and be subject to the same conditions as a national patent granted by that state. Alternatively, the proprietor may request registration of a single Unitary Patent within one month of grant, which provides uniform protection and has equal effect in the 18 (to this date) participating EU member states that have signed and ratified the Agreement on a Unified Patent Court (UPCA)
• The Unified Patent Court (UPC) is an international court system that commenced on 1 June 2023 to handle disputes relating to Unitary Patents and classic European patents in participating EU member states. The UPC aims to provide a streamlined, centralized judicial process for patent litigation across those states, with an opt-out available for classic European patents during a transitional period.
• As part of the UPC system, Sweden hosts the Nordic-Baltic Regional Division (covering Sweden, Estonia, Latvia, and Lithuania) in Stockholm. The judges are drawn from the participating states, and proceedings at this division can be conducted in English, making it accessible for international litigants.