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The Court of Appeal (CoA) of the UPC recently handed down a decision clarifying temporal limitations to the UPC’s competence (UPC_CoA_156/2025). In this article, Will Morgan gives us his key takeaways from the decision.
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A key takeaway is that the UPC’s jurisdiction extends to acts of infringement occurring before the UPC Agreement (UPCA) came into effect, provided the infringed patent is within the UPC’s competence at the time of an action before the UPC.
The CoA held that the competence of the UPC is not temporally limited by Article 32(1) UPCA, and that the absence of any temporal limit to the UPC’s jurisdiction in Article 32(1) UPCA aligns with the purpose of the UPC: providing a common court for Contracting Member States which prevents difficulties caused by fragmentation and variations between national court systems (UPCA, Preamble, Recital 2).
The CoA also held that the choice of forum during the transitional period (UPC or national court) does not affect the above lack of temporal limitation. According to Article 83(1) UPCA, the UPC and national courts have parallel competence for non-opted out European patents during the transitional period. This means that an action for infringement or revocation of a non-opted out European patent may still be brought before a competent national court during the transitional period.
Finally, the CoA held that withdrawal of an opt-out fully restores competence of the UPC without prejudice to parallel competence of national courts during the transitional period. The CoA surmised that a converse approach would lead to fragmentation contrary to the purpose of the UPC. As a consequence, the UPC is competent to decide on alleged infringements that occurred in a period in which the patent was opted out of the UPC’s jurisdiction.
The full decision can be found here.
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This is for general information only and does not constitute legal advice. Should you require advice on this, or any other Unified Patent Court related topic, then please contact upc@hlk-ip.com or your usual HLK advisor.