Effect of an opt-out on the substantive patent law to be applied by the national court – Interpretative note of the Preparatory Committee of the Unified Patent Court of January 29, 2014
The unitary patent package has created many legal problems, some of them due to the fact that the unitary patent is based on different layers of European, international and national law. The complex interaction within these different layers is not always clear. In recent discussions the question has arisen whether the provisions on substantive patent law in the Agreement on the unified patent court (UPCA) are applicable to European bundle patents for which an opt-out has been declared during the transitional period pursuant to Article 83 (3) UPCA (cf. e.g. Schröer, GRUR Int. 2013, 1102, at p. 1107 f.). Although it will be the responsibility of each national court to determine its position in this respect, the Preparatory Committee has found it useful to give its opinion on this matter.