UPC-series: The competence of the UPC
The UPC has exclusive competence regarding any form of litigation of European Patents, Unified Patents and SPCs for products covered by these kinds of patents. A unitary patent can only be litigated before the UPC. Pursuant to Article 32 of the UPC Agreement can judge upon: Actions for infringements or threatened infringements and related defenses, actions for declaration of non-infringement, actions for provisional measures and injunctions, actions for damages, actions for revocation and related counterclaims. The UPC can also act as an administrative court in relation to EPO decisions according to the EU Regulation No 1257/2012 on the Unitary Patent system. Consequently, entitlement suits fall out the jurisdiction of the UPC and they can only be filed before competent national courts.
Although the competence of the UPC is exclusive, the national courts still remain competent to judge upon actions concerning patents and SPCs that are excluded from its competence. For the following seven years, characterized as a transitional period, the UPC and the national courts of the contracting states have concurrent jurisdiction and the UPC does not enjoy any kind of supremacy over the national courts. There is also the possibility of the opt-out patent scheme, which allows the proprietor or the licensee to rule out UPC’s competence over the case, by just filing an opt-out declaration. The consequence of this declaration is that any form of litigation can only be brought before national courts. The only exception to fling an opt-out is when the proceedings before UPC already started. Once a party has filed an action before the Court, the opt-out ability ceases to exist.