Unified Patent Court
A single patent court for Member States of the European Union
The option to file an opt-out is now available as the so-called sunrise period has begun. However, the opt-out will only become effective on the date of entry into force of the Agreement on a Unified Patent Court (UPCA), on 1 June 2023.
According to Article 83(3) of the Agreement on a Unified Patent Court (UPCA), applicants for and proprietors of a “classic” European patent, as well as holders of a supplementary protection certificate (SPC) issued for a product protected by a “classic” European patent, can opt out their application, patent or SPC from the exclusive competence of the Court. As a result, the UPC will have no jurisdiction concerning any litigation related to this application, patent or SPC.
Please note that it is not possible to opt out a Unitary Patent from the UPC’s competence.
The following conditions must be met for a valid opt-out:
• The opt-out can only be made in respect of all states for which the European patent has been granted or which have been designated in the application.
• An opt-out is only possible as long as no action has been brought before the UPC in respect of this application, patent or SPC.
• The application to opt out can only be made via the Case Management System of the Court (CMS) which implements all procedural requirements for an opt-out or a withdrawal of an unauthorised opt-out pursuant to Rule 5 and 5A of the Rules of Procedure of the UPC You can find extensive guidance on the application to opt out in the CMS.
For multiple and automatic opt-outs an application programming interface (API) will be available to communicate directly and in a secure way with the CMS.
It is also possible to correct an opt-out or to withdraw an opt-out, or to file an application to remove an unauthorised application to opt out or unauthorised withdrawal of an opt-out. An opt-out can be withdrawn anytime as long as no action has been brought before a national court in respect of the application, patent or SPC subject to the opt-out.
You can find more information on opt outs in the opt-out guidance.