The Agreement on a Unified Patent Court (UPCA)

In February 2013, 25 EU Member States, namely all except Spain, Poland and Croatia, signed the Agreement on a Unified Patent Court (UPCA) (published in OJ EPO 2013, 287). The UPCA is the third component of the Unitary Patent package. The Unified Patent Court (UPC) is a common court for all the Member States party to the UPCA and thus part of their judicial system. It has exclusive competence in respect of Unitary Patents as well as in respect of classic European patents validated in one or several of those states. The UPC provides proprietors with a means of avoiding the high costs, risk and complexity associated with multiple litigation in different jurisdictions. Its specialised and highly qualified judges (including technically qualified judges) will establish harmonised case law and increase legal certainty.
As regards classic European patents, however, the UPC's exclusive competence is subject to exceptions for a transitional period of seven years, which may be prolonged by up to a further seven years. During this period, actions for infringement or revocation may still be brought before national courts (Article 83(1) UPCA). Moreover, proprietors of – or applicants for – a European patent granted or applied for before the end of this transitional period can opt out of the UPC's competence for their patent or application by notifying the Registry of the UPC (not the EPO), unless an action has already been brought before the UPC (Article 83(3) UPCA). They can also withdraw their opt-out at any time, unless an action has already been brought before a national court (Article 83(4) UPCA). Moreover, it will be possible to opt out even before the UPCA enters into force ("sunrise period"). Please note, however, that the option of opting out or bringing an action before a national court during the transitional period is not available for Unitary Patents.
The UPC's rulings are truly pan-European: they have effect in the territories of all the Member States that have ratified the UPCA. The UPC has no competence with regard to national patents. More information on the UPCA and the possibility of opting out is available on the UPC website.
The UPC also has jurisdiction over decisions taken by the EPO on requests for Unitary Patents and any other decisions it subsequently takes on those patents. The EPO is bound by decisions handed down by the UPC in actions brought under Article 32(1)(i) UPCA (Rule 1(1) UPR).

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