A pending European patent application (“EP application”), or any granted European patent (“EP”) and the supplementary protection certificates (“SPCs”) based thereon, can be opted out of the competence of the upcoming Unified Patent Court (“UPC”) so that they continue to be handled by national courts on a country-by-country basis. Opt-out is free of official charge and can be requested during the three-month sunrise period (currently expected to start on January 1, 2023). Alternatively, but with some uncertainty (see below), the opt-out can also be declared after the start of the new court system (currently expected on April 1, 2023) during the following seven-year (possibly up to 14-year) transitional period. An opt-out for an EP automatically covers all SPCs based on that EP. Expired EPs can also be opted out as they may be relevant for seeking past damages in litigation. An opt-out for a divisional application is independent from that of the parent application. Opting out is not possible for unitary patents. (See Information on requesting unitary effect for EPs.)
Whether to opt out or stay in the new system is essentially a litigation-driven decision. Compared to the current litigation system in Europe, the UPC offers its users many benefits, such as …
Download – Information on Opting European Patents Out of the UPC System.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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