What are the arrangements for the transitional period (opt-out scheme and choice of forum) for the Unified Patent Court?

For a transitional period of seven years, which may be prolonged by up to a further seven years, the following options will be possible for litigation involving “classic” European patents:

  • Actions for infringement or for revocation may still be brought before national courts (Article 83(1) of the UPC Agreement).
  • A proprietor of or an applicant for a European patent granted or applied for before the end of the transitional period will be able to opt out of the UPC's jurisdiction in respect of that European patent or application for the entire lifetime of the patent, unless an action has already been brought before the UPC. To do this, the patent proprietor will have to notify an opt-out to the Registry of the UPC. The opt-out will take effect upon its entry in the Register (Article 83(3) of the UPC Agreement). It will be possible to withdraw any such an opt-out at any time, unless an action has already been brought before a national court (Article 83(4) of the UPC Agreement). The sunrise period for the possibility of opting out in respect of European patents and European patent applications is planned to start three months before the UPC becomes operational.

It is important to note that the possibility of opting out or bringing an action before a national court during the transitional period is not available for Unitary Patents.