The transitional period for the Unified Patent Court (UPC) was initiated on 1 June 2023, the same date as the entry into force of the UPC Agreement. During this seven-year transitional period, due to end in mid-2030, but which may be prolonged for a further seven years:
- Applicants and proprietors have the opportunity to "opt-out" their European patent applications and "classical" European patents (i.e. "normal" nationally validated European patents, not those with unitary effect) from the jurisdiction of the UPC. In short, this opt-out lasts the entire lifetime of the patent, even after the end of the transitional period, and ensures that any litigation concerning the opted out "classical" European patent remains with the national courts.
- Actions for infringement or revocation in respect of a "classical" European patent may still be brought before national courts. If not opted out, then one may choose between the UPC and the national courts during this time.
Opting out or bringing an action before a national court during this period is not available for Unitary Patents. Please note that these issues affect only those "classical" European patents validated in EU member states participating in the UPC. European patents validated in non-participating EU states, such as Spain and Poland, and non-EU states, such as the UK and Switzerland, remain under the jurisdiction of the relevant national courts.
After the transitional period, i.e. from 1 June 2030, unless extended:
- Patentees will no longer be able to "opt-out" of the UPC. However, "classical" European patents already opted out will remain opted out, unless the opt-out is withdrawn.
- The UPC will automatically have exclusive jurisdiction over the relevant existing "classical" European patents or patent applications (that have not already been opted out), the relevant "classical" European patents or patent applications filed after the end of the transitional period, and (as during the transitional period) Unitary Patents. That is, unless already opted out, it will no longer be possible to bring an action before a national court in respect of a "classical" European patent in the relevant UPC states.
The EPO website records that unitary effect has been requested on 27.6% of European patents in 2025 to date (up from 25.6% in 2024 and 17.5% in 2023). This may indicate that the UPC is gaining trust from patentees during its first two years in action, in particular as case law continues to develop. Patentees may be taking solace from recent case law, some of which appears to indicate that the UPC intends to follow analogous tests to those developed by the EPO Boards of Appeal. Accordingly, it will be interesting to see whether there is a corresponding reduction in the number of opt-outs over the remaining five years.
It is worth remembering that you will not be able to "opt-out" forever, and it may be time to re-think your European validation strategy and/or accept your fate as regards the jurisdiction of 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.
