The opt-out is a provision that allows a patent owner to exclude their European patent or European patent application from the jurisdiction of the UPC. This means that the patent will only be subject to the jurisdiction of national courts, rather than the UPC, when it comes into effect.

An opt-out is required if a patent owner wishes to avoid the UPC for their European patent or European patent application. If no opt-out is filed, the patent will automatically fall under the the UPC.

An opt-out can be filed during the “sunrise period” and the “transitional period”. The sunrise period began on March 1, 2023, and the transitional period will last at least seven years after the UPC comes into effect. An opt-out cannot be filed if there is ongoing UPC litigation at the time of filing.

The opt-out will be effective for the lifetime of the European patent or patent application. However, it can be withdrawn once, unless there is ongoing national litigation.

Only the “true” proprietor(s) or applicant(s) is entitled to request an opt-out, and the request must be made through an online case management system. Co-owners must opt-out in agreement, and licensees are not entitled to opt-out.

The opt-out decision will depend on several factors, including the risk of central revocation in the UPC and the desire to influence UPC case law. Opting out everything may prevent UPC enforcement and provide limited opportunities for influencing UPC case law.

No. The UPC is only open to participation by EU member states. Participation further requires UPCA ratification. The UK was an EU member state and ratified the UPC agreement on April 26,2018. However, at the time of leaving the EU in 2020 “Brexit”, the UK also withdrew its UPCA ratification.