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30/08/2013

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Art. 32 (1) and (2) clarify the competence of the court: Either it has exclusive competence with respect to actions that fall within Art. 32 (1) AUPC. Otherwise it has no competence at all, which is clearly stated in Art. 32 (2) AUPC.

Art. 83 (3) AUPC has to be construed in light of Art. 32 AUPC. If a patentee opts out, there is no competence of the UPC at all.


This becomes even clearer if one takes into account the situation after the transitional regime will have ended: From that time on, the UPC has only an exclusive jurisdiction with respect to Art. 32 (1) AUPC. The declaration to opt out will still be valid, since opting out does not cease to have effects after the transitional period (otherwise, Art. 83 (3) sentence 2 would not make any sense at all). Hence, this leads to the unambiguous consequence that the UPC is not competent for actions brought before its divisions provided that the patentee declared to opt out in due time.

Constructing Art. 83 (3) in a way that there remains a nonexclusive competence of the UPC during the transitional period would hence lead to the effect that the UPC is competent during the transitional period, but not competent anymore after the transitional period. This does not make sense at all.

Furthermore, if one constructs a nonexclusive competence of the UPC under Art. 83 (3) AUPC, opting out would have no effect, since both UPC and national courts are both competent during the transitional regime, Art. 83 (1) AUPC.

This leads me to the clear and unambigous conclusion that the UPC has no competence with respect to patents for which the patentee declared to opt out from the esclusive competence of the UPC, Art. 83 (3) AUPC. This result shall be valid for actions on the merits as well as for preliminary injunctions.

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