A guide to the UPC and the UP - Flipbook - Page 132
Figure 7-4: Applicable Law During Transitional Period
Status quo
Entry into force
of the UPCA
End of
transitional period
Transitional period
Unitary patent
European patent
(before the Court)
EPC + National Law
UPCA
European patent (before national
court and without opting out)
EPC + National Law
UPCA before
the Court
European patent (before national
court and after opting out)
EPC + National Law
7-84
126
127
128
UPCA
It has been suggested that the national courts will have to apply the substantive law provisions
on infringement in the UPCA 126 to all European patents, even if they have been opted out
according to art.83(1) UPCA, 127 and to this extent patent law has been harmonised by the UPCA.
Those holding this view point to the fact that arts 25 to 27 and 29 UPCA use the general term
“patents” which encompasses both Unitary and European patents. 128 Such a view does offer
certainty for third parties in that the applicable law is not dependent upon the decision of the
patentee on where to bring the action.
arts 25 to 27 and 29 UPCA.
e.g. Tilmann W “The Transitional Period of the Agreement on a Unified Patent Court” JIPLP, 2014, Vol. 9, No. 7, p.575 and
“The UPC Agreement and the Unitary Patent Regulation – construction and application” JIPLP, 2016, Vol.11, No. 7, p.545.
Also, Hoffmann Eitle “The EU Patent Package Handbook, A Practitioner’s Guide” (Munich: Hoffmann Eitle, 2014), p.37.
art.2(g) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 122
