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Lodging of an Application to opt out and withdrawal of an opt-out

On the effective date of the opt-out notification, a European patent without unitary effect (here: patent) is excluded from the competence of the UPC in respect of all its claims and for all countries of protection (on the latter point, → Rule 5.1(b) UPCARoP). For the actions listed in Art 32(1) UPCA, only those national courts that would be competent if the UPC did not exist are competent. That said, the patent is not excluded from the UPCA. Its harmonizing provisions are also to be applied by the national courts competent after the opt-out. For details, refer to the commentary on Art 83 UPCA. The expression ‘exclusive competence’ in para 1 of Rule 5 UPCARoP has given rise to misunderstandings. What is meant is that the competence of the UPC referred to as exclusive in Art 32(1) UPCA is lifted and replaced by the exclusive competence of the national courts.