Opting out: your decision for or against the UPC system

Do you prefer to continue relying on the proven quality of national court proceedings? Or perhaps you are interested in protecting your patent(s) in only one EU country? For such cases, you have the option of excluding your traditional European patent (EP) from the jurisdiction of the UPC by “opting out”.

Deadlines and formalities for opting out

For a traditional European patent (EP) granted or a traditional European patent application filed before the end of a so-called “transitional period,” you can exclude it from the jurisdiction of the UPC by opting it out. If you opt out, your patent or patent application will remain in the existing system for the lifetime of the patent and the national courts will retain their exclusive jurisdiction in matters concerning this IP right.

Even for an EP granted or applied for before the end of this (maximum 14-year) transitional period, you can exclude the jurisdiction of the UPC by opting out. In order for you to do this, no action may have been brought before the UPC up to that point. You can also withdraw from the opt-out (“opt-back-in”) as long as no action has so far been brought before a national court.

Good to know: you can file an early opt-out declaration as early as three months before the Agreement on a Unified Patent Court (UPCA) enters into force (“sunrise period”) – this gives you enough time for all considerations and formalities relating to IP law.

Patent Litigation in Germany in the future (example)

Opting out: pros and cons

Whether you choose to opt out and continue pursuing European patent protection under many national jurisdictions, or whether you choose to place them under the new unified jurisdiction of the UPC, this will most likely be decided on a patent-by-patent basis.

The main arguments in favor of the UPC (and thus against opting out) are the cross-border enforcement and the uniform language in several countries. Of course, at least at the start, the UPC will be unchartered territory and for those who prefer a high level of predictability and certainty, or simply value the high quality offered by, e.g. German, national proceedings, opting out is certainly worth considering.

Whatever you decide, you can count on a high level of expertise, especially at the national courts or UPC divisions in Germany, where you can enforce your patents with legal certainty in the event of a dispute.

The unitary patent: EU-wide protection for your ideas

The European patent with unitary effect offers companies and inventors uniform protection for their innovations across the EU. In the future, this “unitary patent” will be effective in up to 24 EU member states and can be restricted, transferred, nullified, or can lapse for those states. Learn more about the unitary patent and how you can extend the protection of your existing patents in a way that makes sense while saving time and money!

One for all: the UPC

The Unified Patent Court (UPC) will be a judicial authority that handles patents independently throughout the EU. Germany is an important venue for patent holders who wish to enforce their IP rights: the UPC is represented four times here. Read more about the structure and tasks of the UPC – and about the advantages for you!