On 21 September 2026, the Court of Appeal of the Unified Patent Court (UPC) issued a game-changing decision for holders of pending European patents. In practical terms: a competitor can now sue you before the UPC even before your patent is granted, and you will no longer be able to opt out of this jurisdiction once the action has been filed.
For a company, this means both:
- A risk: A competitor can “lock in” your patent application with the UPC as soon as it enters the grant phase, thereby preventing you from choosing a national jurisdiction you might consider more favourable.
- An opportunity: You now have a new tool to challenge your competitors’ patent applications in advance, with leverage across 18 countries at once.
The decision in question is the Omnia Technologies v. Sidel Participations ruling (UPC-CoA-90/2026). Here is what it says and what you need to take away from it for your portfolio.
What happened, step by step
In March 2026, Omnia filed a petition with the UPC’s Central Division in Paris seeking a declaration of non-infringement of two of Sidel’s European patent applications (EP 4 594 194 and EP 4 624 351). At that time, these applications had not yet been granted: the European Patent Office (EPO) had simply notified Sidel of its intention to grant them (notification pursuant to Rule 71(3) EPC).
Sidel responded by filing “opt-outs”, that is, formal declarations removing these patents from the UPC’s jurisdiction and referring any litigation to national courts. However, Omnia had already served its complaint.
In April–May 2026, the two patents were granted. In September, the UPC Court of Appeal (Justices Voß, van den Broek, and Sabotier) ruled that the UPC’s jurisdiction was confirmed and that Sidel’s opt-outs were null and void.
The Court’s reasoning can be summarised in one sentence: the question is not “Does the UPC have jurisdiction over a patent application, that is, a patent that does not yet exist?” but rather “Is the action admissible if the patent comes into existence during the proceedings?” The answer is yes, provided the patent is granted before the defendant files its defence on the merits.
How this affects you, depending on your situation
You are the owner of the patent applications currently under examination
This is the group most at risk. In practice, a competitor monitoring EPO publications can, as soon as they see the notification of intent to grant (Rule 71(3) EPC), file a non-infringement action before the UPC’s Central Division. Once this action is served, you can no longer opt out. The European procedure timeline applies.
Our advice:
- Decide to opt out as soon as your application is published (A1) to retain control. Article 83(1) of the UPC Regulation permits this at this stage. Waiting until grant may be too late.
- Monitor third-party observations filed with the EPO on your applications. This is a strong signal: a competitor is interested in your technology and may be preparing legal action.
- Establish an internal procedure: Who decides on the opt-out, who signs it, and by what deadline? Should you consult your counsel before making the decision?
Strategic advice: For companies whose core business depends on a few strong patent families, an early opt-out offers low-cost protection against the opposing party’s “forum shopping.” Conversely, if your strategy aims for the unitary effect or centralised exploitation through the UPC, not opting out remains the right choice, but this must be an informed, well-documented decision—not a default. Contact us and we will advise you.
You are a competitor of a patent holder who is threatening you.
This is where the decision becomes an opportunity. You no longer need to wait for the patent to be published (A1) before taking action. As soon as you receive notification of the intention to grant (Rule 71(3)), you can:
- File a preventive non-infringement action with the Central Division (Paris, Munich, or Milan). You ask the UPC to rule that your product or process does not fall within the scope of the claims.
- File a preventive revocation action. The Court of Appeals suggests that the same reasoning applies.
- Secure the UPC before the patent holder opts out. Speed of execution is critical: service of your action renders any subsequent opt-out ineffective.
Concrete example: A competitor files a patent for a device that may cover your innovation, but you doubt its validity. As soon as you receive the EPC Rule 71(3) notification, you file a non-infringement action before the UPC (or a nullity action). The competitor can no longer opt out. You manage the risk across 18 countries in a single proceeding, in French, English, or German.
In conclusion: anticipate, so you don’t suffer the consequences
The Omnia/Sidel decision ends the pre-grant “grey area.” The UPC is now accessible as soon as there is an intention to grant, and the race to opt out occurs upon publication of the application (A1), not upon grant (B1). The timeline is shorter, and the stakes are more immediate.
For a company, especially an SME, two approaches are possible, and you must choose one now, not after the event:
Defensive approach. Early and systematic opt-out from non-strategic patent families. You control your costs, preserve national jurisdictions, and avoid the risk of dependence on the UPC for a patent you exploit in only two or three countries.
Offensive strategy. No opt-out; actively monitor opposing applications while retaining the ability to file a lawsuit upon receipt of a Rule 71(3) notification. You control forum shopping, leverage pan-European reach, and deter competitors from filing overly broad claims.
The wrong approach is to fail to make a decision. Waiting for the patent to be granted, only to discover that a competitor has locked down your patent at the UPC.
Your questions, our answers
Opt-out vs. opt-in?
With the entry into force of the Unified Patent Court (UPC) and the unitary patent on June 1, 2023, a 7-year transitional period has been established during which both the UPC and national courts have jurisdiction over a “non-unitary” European patent (traditionally validated in one or more contracting states of the European Patent Convention). During this period, any holder of a European patent or a published European patent application may designate the competent court for their patent or patent application using the “opt-out” and “opt-in” procedures. The “opt-out” procedure allows the UPC to be excluded from jurisdiction, with national courts then having exclusive jurisdiction over the European patent or European patent application. Conversely, the “opt-in” procedure grants the UPC exclusive jurisdiction over that European patent or European patent application. While the “opt-in” is final, the “opt-out” is reversible by means of an “opt-in.”
Should you always opt out as soon as A1 is published?
No. Opting out deprives you of unitary effect and the UPC’s jurisdiction. If your strategy aims for unified European protection, it makes sense not to opt out. An early opt-out is only necessary for patents you wish to keep outside the UPC: defensive patents, non-strategic countries, or situations where you prefer to control costs within a single national jurisdiction.
What happens if the patent is ultimately not granted (refusal, withdrawal)?
The non-infringement action becomes moot and is dismissed. But the time and expenses the competitor incurred in suing you are wasted; there is a real deterrent effect. Conversely, if you have sued a competitor and their patent is rejected, your case is dismissed. This is a risk that must be assessed on a case-by-case basis, by weighing the likelihood of grant against the cost of the lawsuit. Waiting to receive the notification under Rule 71(3) is the best way to guard against this issue.
Does this decision apply to unitary patents?
Unitary patents only exist after grant. The Omnia/Sidel decision concerns traditional European patent applications (the national “bundle”) that have not yet been granted. For applications for which unitary effect is requested, the same logic will most likely apply by analogy, but the case law is not yet explicit.
