Enforcement and Opt-Out

06. Juni 2023 | UPC

All Unitary Patents (UP) issued by the EPO is subject to the jurisdiction of the Unified Patent Court (UPC).

Enforcement of the UP is thereby possible in all UPC member states by means of a single court action. This is of course accompanied by the risk of losing the patent protection in all UPC member states by a single revocation action.

But what about existing and pending European patents as well as European applications close to grant for which a proprietor decides against the possibility of a UP issuance (EP classical patents)?

The answer is that those patents likewise is subject of the jurisdiction of the UPC if no “opt-out” is declared by the proprietor.

The opt-out should preferably be declared prior to the decision to grant, or, provided there is no action before the UPC, at the latest at any time within the currently specified 7-year transitional period.

If no opt-out is declared for classical EP patents, such patents become the subject of the dual jurisdiction of the traditional national courts and the UPC during the transitional period. After the transitional period jurisdiction is solely with the UPC court.

See graphic under „How to obtain UP“