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Art. 83 (1) AUPC states that during transitional period, actions can still be brought before national courts. I cannot see a provision ensuring that parallel proceedings before the UPC and a national court are forbidden.

Art. 83 (3) and (4) do not cover this situation.

Can that be true? This would mean that with respect to a European Patent without unitary effect, this would allow me to start a nullity action f.ex. in France, notwithstanding the fact that an infringement and/or nullity action is already pending before the UPC...

It is quite logical that a Regulation does not cite an Agreement which has not been signed so far. The "relaunch" of the 44/2001 Regulation has its grounds primarily in the rules for enforcement of judgments throughout the EU. It was passed before the final versions of the two Regulations with regard to the unitary patent have been passed.

Of course they will change the new Brussels regulation, but they can only do it after the UPC has been signed.

Thank you for the commentary on Article 33(2). It's interesting to see where the quirks in the agreement are!

One area we've been looking at on our blog is Article 47(5) and whether it will force defendants to start separate proceedings in cases where an exclusive licensee brings the action instead of the patent owner.


Note that the unitary patent regulations can only enter into force once the UPC agreement itself has entered into force. And Art. 89 UPC states that for UPC to enter into force, a revision of Brussels I regulation is needed.

The Brussels I regulation (formerly EC 44/2001) has been recasted very recently, and has been published in EU Official Journal on December 20th, 2012, L 351/1. But nothing about UPC was taken on board in this recast.

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