UPC-series: Scope of UPC’s jurisdiction

The jurisdiction of the Court covers both “classic” European patents and European patents with unitary effect (Unitary Patents), considering both infringement and revocation actions. Nevertheless, the exclusive jurisdiction of the Court regarding “classic” European patents is subject to exceptions during a transitional period of seven years. During this period, actions concerning European patents may still be brought before national courts if opted out. Furthermore, “classic” European patents can be opted out entirely from the UPC’s jurisdiction either as an application or a granted patent. The opt-out can be withdrawn at any time unless proceedings before a national court have commenced. In this case the opt-out is valid after the end of that action.

According to Article 32 UPCA, actions that fall under the jurisdiction of the UPC are, inter alia, actions for actual or threatened infringements of patents and supplementary protection certificates and related defenses, including counterclaims concerning licenses; actions for declarations of non-infringement; actions for provisional and protective measures and injunctions; actions for revocation and for declaration of invalidity; counterclaims; action for damages etc.

The UPC has the power to decide upon the validity of the UPs and decide if a third-party revocation action is available. Actually, the party claiming revocation of the right can bring a revocation action before the UPC while the proceedings before the EPO are still pending. That being the case, the UPC may either stay the proceedings or ask for an acceleration of the proceedings on its own or after a request from a party (Article 33(10) UPCA and Rule 298 of the Rules of Procedure of the UPC).

Areas of Law

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