UPC

The UPC has mandatory jurisdiction over unitary patents; they cannot be withdrawn from the UPC’s jurisdiction.

For “traditional” European patents (the bundle of national components), an optional regime applies during a transitional period: As long as no effective opt-out has been declared, the UPC may also have jurisdiction in these cases; if an opt-out is declared, jurisdiction remains with the national courts.

The practical difference is significant: Before the UPC, infringement and validity proceedings (in particular, nullity and revocation proceedings) can be conducted centrally under certain conditions – with effect for multiple countries simultaneously.

In practice, the UPC can be particularly attractive if you wish to enforce a patent with broad territorial significance and speed and reach are paramount – for example, when counterfeits need to be stopped promptly in multiple markets.

Conversely, an opt-out may often be the logical choice if a patent is “critical” to your business but is also considered vulnerable, or if you deliberately prefer a national litigation strategy – for example, because you want to target specific core markets or because you wish to manage risk through multiple parallel methods.

For portfolios of mixed quality, a differentiated approach may also be advisable, in which certain patents remain in the UPC while others – such as particularly central or particularly exposed intellectual property rights – are excluded.

The factors mentioned can make enforcement significantly more efficient, as there is no need to litigate in numerous countries simultaneously.

At the same time, however, this increases the risk: If a patent is challenged centrally and is invalidated, this can affect the legal position in multiple markets at once.

Whether the UPC represents more of an opportunity or a risk for your portfolio therefore depends heavily on the product, target markets, validation strategy, and competitive landscape.

We support you in strategic assessment and practical implementation: Which patents should remain in the UPC system, where does an opt-out make sense, and which enforcement or defense strategy is legally sound and economically viable in the specific situation.

Opting out is generally possible during the transitional period (in particular, as long as no UPC action is pending) and takes effect upon entry in the UPC Register; withdrawing the opt-out (“opting back in”) is possible only under certain conditions.