Are there any transitional provisions?

The UPC will have jurisdiction not only over UPs but also over existing and future ‘traditional’ non-unitary European patents (that is, EPs designating one or more individual UPC States but not validated as a UP). During a transitional period of seven years after the entry into force of the UPC Agreement, proceedings for infringement or for revocation of a non-unitary EP may be initiated before the national courts or the UPC. Any proceedings pending before a national court at the end of the transitional period will continue to be heard in that national court.

In addition, unless proceedings have already been initiated before the UPC, proprietors of or applicants for non-unitary EPs can “opt out” from the new UPC regime, by notifying the Registry of the Court of their opt out. There will be a “sunrise” period for registering opt-outs that will start three months before the UPC enters into force. The latest an opt-out can be registered is one month before expiry of the transitional period. In addition, patentees or applicants can withdraw their opt-out (ie “opt in”) at any time (unless national litigation has commenced during the opt out). Proceedings concerning opted out EPs will only be possible in the national courts. There will be no fee for registering or withdrawing opt-outs.

After five years of this transitional period, a review will take place of the continuing popularity (or otherwise) of such litigation before national courts. Depending on the outcome, the transitional period may be extended by up to seven years (making 14 years in total).

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