On 29 January 2014, the Preparatory Committee published an “interpretative note” (HERE) on the consequences of the application of Article 83 of the UPC Agreement. This note rebuts a controversial view expressed by some commentators that the effect of the UPC is to harmonise all national patent law, such that regardless of the opt out provisions, national courts would have to apply the UPC, including potentially even its procedural provisions. In its analysis, the Committee says that the aim of the UPC system was not obligatory harmonisation of national patent law or for national courts to have jurisdiction regarding the UPC Agreement. The Committee concludes that its view is that if a European patent or an application for one, or an SPC based on one, is opted out of the exclusive jurisdiction of the UPC (Article 83(3)), the UPC Agreement no longer applies to that patent, application or SPC. Similarly, if during the transitional period a case regarding a European patent is brought before a national court (Article 83(1)), the UPC Agreement no longer applies. Therefore, in both events, national courts will apply national law to those European patents, applications and SPCs. Whilst this Interpretative Note may be welcomed, a number of issues relating to the operation of the opt-out regime remain unanswered – see our earlier article HERE.
Interpretative note – Consequences of the application of Article 83 UPCA – HERE.