Meissner Bolte

UPC Blog

Timan Pfrang
Tilman Pfrang
Patent Attorney, Dipl.-Phys., LL.M.

The Court of Appeal of the Unified Patent Court

… first decision, first conclusions!

The Court of Appeal of the Unified Patent Court (UPC) has recently issued its “inaugural” order, marking a significant milestone since the commencement of the UPC system on June 1, 2023. As anticipated for a newly established court, this initial appellate order addresses a procedural matter rather than the substantive merits of the case.

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The opt-out from the competence of the UPC (II)

… what is an action? 

Concerning the opt-out from the jurisdiction of the Unified Patent Court (UPC), it is clear that this choice becomes unavailable once an action has been brought before the UPC.

Article 83(3) UPCA reads:

"Unless an action has already been brought before the Court [i.e. the UPC], a proprietor of or an applicant for a European patent granted or applied for prior to the end of the transitional period [of seven years plus a potential maximum of further seven years] ... shall have the possibility to opt out from the exclusive competence[read competence without the misleading term "exclusive”] of the Court.” But, what is an "action"?

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Let us opt-out because an opt-in is always possible!

…is it that convenient…?

Numerous European patent owners adopted a strategy of opting out their entire portfolios from the jurisdiction of the Unified Patent Court (UPC), referring to the flexibility of a subsequent "opt-in" at any time. Despite acknowledging theoretical pitfalls in this approach, some believed these concerns would be practically negligible. However, the recent development in the UPC's local division in Helsinki has challenged these assumptions. So what happened?

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