Competence of the UPC

For a transitional period of seven years, the UPC and national courts will share competence for traditional European patents and SPCs based on traditional European patents, such that the patent proprietor may choose which system to use. 

The UPC's competence includes matters relating to infringement, damages, compensation, non-infringement proceedings and invalidity proceedings. 

The opt-out system allows proprietors the option of excluding traditional European patents, and SPCs based on traditional European patents, from the jurisdiction of the UPC. However, this option is only available for an initial seven years from the entry into force of the Agreement on a Unified Patent Court, subject to a possible seven year extension. 

Unitary Patents

The UPC will have exclusive jurisdiction in cases involving a Unitary Patent. This includes matters relating to infringement, damages, compensation, non-infringement, and invalidity.  See also Unitary Patents to read more. 

Traditional European patents

The UPC will have exclusive competence in respect of cases where the patent is a traditional European patent, provided that the patent has been validated in and is still in force in at least one of the EU member states participating in the co-operation. However, during a provisional period of seven years, the UPC and national courts will have concurrent competence in respect of traditional European patents. Consequently, during this provisional period, a case may be brought either before the UPC or before the national courts, allowing the claimant the possibility to choose between the two systems.

It is possible to limit the jurisdiction of the UPC by opting out a traditional European patent. The possibility of opting out is only available as long as litigation involving the patent in question has not been commenced before the UPC, either by the patent proprietor or by a third party. 

If a traditional European patent has been opted out, it will only be possible to enforce that patent before the national courts in countries where the patent has been validated, unless the patent proprietor decides to opt the patent in at a later time. Thus, the patent proprietor has access to "withdraw" his opt-out and thereby grant the UPC shared competence to decide cases concerning that patent (again). However, if an action has been brought before a national court within the UPC territory concerning a patent which has been opted out of the UPC's competence, it will not be possible to subsequently withdraw the opt-out of that patent again, irrespective of whether the action is pending or has been concluded. In these situations, the proprietor will be permanently prevented from withdrawing the opt-out of that specific patent. If the proprietor chooses to withdraw an opt-out, it will not be possible to subsequently opt out of UPC's competence again.

At the conclusion of the transitional period, all traditional European patents that have not been opted out will be subject to the UPC's exclusive competence. All traditional European patents applied for or granted after the conclusion of the transitional period will be covered by the UPC's exclusive competence.

SPCs

The UPC will have competence in cases involving an SPC based on a traditional European patent, provided that the patent has been validated and is or has been in force in at least one of the participating Member States, and exclusive competence in cases involving an SPC based on a Unitary Patent. SPCs based on traditional European patents can be opted out in the same way as traditional European patents, see above on traditional European patents.   

 

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Our team of experts

Do you have any questions on this topic? Don't hesitate to contact Partner Nicolai Lindgreen, Partner Nicolaj Bording, Attorney Emil Petri, Attorney Mathias Rønø Bove or Assistant Attorney Victor Fasmer Henum.