The entry into force of the Unified Patent Court (UPC) and the unitary patent on June 1, 2023, is accompanied by a 7-year transitional period. While the UPC has exclusive jurisdiction over unitary European patents during this period, both the UPC and national courts have jurisdiction over “traditional” European patents (i.e., those validated on a country-by-country basis, not unitary).
The owner of a European patent or a published European patent application may therefore choose the competent court through two mechanisms:
- The opt-out: the owner withdraws their patent (or application) from the UPC’s jurisdiction. National courts then become the sole competent courts. This is done by filing a request with the UPC and is reversible through an opt-in.
- The opt-in: the patent owner grants the UPC exclusive jurisdiction over disputes relating to their patent. This decision is final: it cannot be reversed.
Important note: If the patent owner makes no choice, the competent court may be determined by the first dispute brought before it, whether it is an infringement action brought by the patent owner or an action for invalidity or a declaration of non-infringement brought by a third party. A competitor may therefore be the first to file a claim—either before the JUB or a national court—and thereby “lock in” the applicable jurisdiction
For more information, please see our dedicated article on the subject or contact us.