UPC Opt-out

The UPC will eventually have exclusive jurisdiction to settle disputes relating to infringement, validity and other matters for both UPs and traditional EPs covering member states participating in the UPC system. However, during a transitional period of 7 years (which may be extended by up to a further 7 years) disputes involving traditional EPs may be brought in either the UPC or the relevant national court i.e., there is dual jurisdiction.

During the transitional period, existing EPs and EPs applied for before the end of the transitional period may be opted-out of the UPC system (this can only be done for an EP patent as a whole i.e., for all national designations of the patent as well as any related SPCs), meaning that the UPC will not have jurisdiction over those EPs/SPCs and the jurisdiction will remain exclusively with the national courts. UPs cannot be opted out and will always be subject to the exclusive jurisdiction of the UPC.

Opt-out declarations must be filed with the UPC Registry and submissions started to be accepted from the beginning of the Sunrise Period on 1 March 2023 (many businesses filed opt-outs during the Sunrise Period so that their opt-out would be registered and effective on 1 June 2023 when the UPC opened its doors). An opt-out is only possible if no action in relation to the EP has already been brought before the UPC at the time the opt-out is filed.

Opt-outs become effective from the date of entry of the opt-out into the opt-out register and remain effective for the lifetime of the EP (unless the opt-out is withdrawn). An opt-out can be withdrawn once i.e., a patent can be opted back-in to the competence of the UPC, so long as an action involving that patent has not been brought before any national court at any time before the withdrawal (in those circumstances the opt-out becomes irreversible and cannot be withdrawn). Withdrawal of the opt-out is permanent, it is not possible to file a second opt-out for the same EP.