For European patents with unitary effect, i.e. unitary patents, the exclusive jurisdiction of the European Patent Court applies.
The Unified Patent Court has no jurisdiction for national patents and utility models, e.g. national Austrian patents and Austrian utility models, which fall exclusively under the jurisdiction of Austrian courts (Commercial Court in case of patent infringement, Austrian Patent Office in case of nullity actions). Therefore, one can avoid the Unified Patent Court by applying only for such protective rights, i.e. at the national level.
During a transitional period of seven years, which can be extended by another seven years, it is also possible to file and enforce conventional European patents before national courts by opting out. This avoids conventional European patents becoming the subject of an invalidity action before the European Patent Court. By declaring opt-outs, European patents are completely removed from the jurisdiction of the European Patent Court.
The substantive jurisdiction of the European Patent Court extends to
- patent infringement actions
- actions for a declaration of non-infringement
- actions for revocation of a European patent or unitary patent
- actions for injunctive relief and damages
The UPC is also applicable to the previous European patents (bundle patents) which were or will be validated nationally after the grant of the patent, even if only in those EU member states which participate in the Unified Patent Court. The new, uniform substantive patent law will also apply to these bundle patents. This will most likely also apply to those European patents for which a so-called opt-out has been declared.
The European Patent Court is composed of chambers scattered across many EU states, but belonging to the same court, namely the European Patent Court. For traditional European patents for which no opt-out has been initiated, a kind of concurrent jurisdiction between the European Patent Court and national courts will apply during the transitional period. Infringement or nullity actions could therefore be brought both before a national court and before the European Patent Court
