Parties to proceedings and representation

Yes, the holder of an exclusive licence is entitled to bring actions before the UPC under the same circumstances as the patent proprietor, except where the licensing agreement provides otherwise. The patent proprietor must be given prior notice (Article 47.2 of the UPC Agreement). 
 
A holder of a non-exclusive licence is not entitled to bring actions before the UPC, unless the patent proprietor is given prior notice and in so far as expressly permitted by the licence agreement (Article 47.3 of the UPC Agreement).

In any action brought by a licensee, the patent proprietor shall be entitled to join the action (Article 47.4 of the UPC Agreement).

Under Article 48 of the UPC Agreement, representation before the UPC will be mandatory and parties will have to represented by either

  • a lawyer authorised to practise before a court of a Contracting Member State or
  • a European Patent Attorney who has acquired additional appropriate qualifications such as a European Patent Litigation Certificate.

This is an issue which will have to be considered by the Contracting Member States and the Preparatory Committee and has not yet been decided on.