Enforcement and Opt-Out
All Unitary Patents (UP) issued in the future by the EPO will become 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 will become subject of the jurisdiction of the UPC if no “opt-out” is declared by the proprietor.
The opt-out should preferably be declared before the new system comes into effect, making use of the so-called “sunrise-period”, but may still be declared at any time within the currently specified 7-year transitional period. For new patent grants, the opt-out should preferably be declared prior to the decision for grant.
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.