The Transitional Period of the Agreement on a Unified Patent Court

Articles 83(1), 83(3) and 83(4) UPCA provide a legal field containing many traps and dangers. On close inspection, the benefits intended by these rules for the transitional period, benefits believed to appease the present or future owners of EP, reveal that they are a mixed blessing. The conviction of patent owners and their advisors that it is a good idea to opt out and to wait and see how the UPC system works may prove to be a wrong decision in many cases. Moreover, the way back to the UPC would be closed by any national action before the planned opt-in. In addition, to forget about an opt-out and to continue to use national courts under Article 83(1) UPCA may create trouble, especially after the planned amendment to Brussels I, which installs the regime of Article 29 of Brussels I Regulation in the relation between the UPC and the national courts, thus opening the door to all kinds of ‘torpedoes’. Moreover, contrary to the view of the Preparatory Committee, national courts, under Article 83(1) UPCA as well as under Article 83(3) UPCA, will have to apply substantive civil law as provided for in the UPCA. The clear and simple consequence of these considerations for users is this: there will be a new system with striking advantages. Go ahead and make use of it and, in principle, don’t make use of Article 83(1) and (3) UPCA.