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Opt-Out

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Filing an Opt-out

Please note that the option to file an opt-out is not yet available and any link to the Court’s Case Management System (CMS) on this page will lead you to the CMS as a test site*.

The possibility to file an opt-out will be available as of the start of the sunrise period which will begin after Germany has deposited its ratification instrument for the Agreement on a Unified Patent Court (UPCA). This sunrise period will extend over a period of three months before the entry into force of the UPCA. The opt-out will become effective on the date of entry into force of the Agreement.

According to Article 83(3) 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.

The following conditions must be met for a valid opt-out or a withdrawal of an unauthorised opt-out pursuant to Rule 5 and 5A of the Rules of Procedure of the UPC:

  • 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, and
  • the application to opt-out can only be made via the Case Management System of the Court (CMS) which implements all procedural requirements.

You can find extensive guidance on the application to opt-out in the CMS.

Please note that it is not possible to opt-out a Unitary Patent from the UPC’s competence.

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 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 An opt-out can be withdrawn anytime as long as no action has been brought before a national Court in respect of the application, patent or SPC subject to the opt-out.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 on the CMS.

* Please note that the CMS is currently a test site which allows you to see the process of how to lodge an application to opt out a patent. When the sunrise period is imminent, all applications lodged on the CMS as a test site will be deleted. This means you must then still lodge your application for the opt-out to eventually become effective.