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Filing an Opt-out

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 An opt-out can be withdrawn anytime as long as no action has been brought before a national court in respect of the application, patent or SPC subject to the opt-out.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