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Welcome to this IP Quick Tip on bifurcation at the UPC.
The UPC will not adopt the German bifurcated patent system. Rather, the UPC has competence in infringement actions and revocation actions. The revocation of a patent can be requested either as a counterclaim in an infringement action or by an independent revocation action at the central division.
However, there are scenarios in which different UPC divisions may decide on infringement and validity.
For example, if an infringement action is pending at a local or regional division and the defendant files a counterclaim for revocation, the local or regional division has the discretion to refer the counterclaim for revocation to the central division, thus splitting up infringement and validity.
Or, if an independent revocation action is pending at the central division, the patentee can still initiate an action for infringement of this patent at a local or regional division.
Finally, during the transitional period it is still possible to also challenge the validity of European patents at the EPO and at national courts such as the German Federal Patent Court, so that it is still possible that different courts decide on validity and infringement. However, such challenges do not preclude additional revocation actions at the UPC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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