The opt-out is not necessarily final: it is possible to return to the UPC’s jurisdiction by withdrawing the opt-out — commonly referred to as the « opt-in. » However, this return is subject to strict, one-way rules.

Withdrawing the Opt-out

The proprietor may at any time withdraw their opt-out (Article 83(4) of the UPC Agreement and Rule 5.7 of the Rules of Procedure): the patent then falls back under the jurisdiction (in particular) of the UPC.

Two Locks

Beware of doors that only open one way:

  • withdrawal is impossible if an action has already been brought before a national court for that patent during the transitional period: the national choice is then locked. A competitor may thus « trap » an opt-out by initiating national proceedings, preventing a return to the UPC. By contrast, a national action brought before 1 June 2023 does not block withdrawal: German litigation started in 2020 did not prevent the opt-out of a patent from being withdrawn in July 2023 in order to sue before the Helsinki local division (UPC, CoA, 12 November 2024, AIM Sport v. Supponor, UPC_CoA_489/2023 and UPC_CoA_500/2023, points 11 to 32);
  • once the opt-out is withdrawn, it is never again possible to file a new opt-out for the same patent (Rule 5.8 of the Rules of Procedure): this is final.

In short: you can opt out and then return once — but you cannot shuttle back and forth indefinitely. It is therefore best to think carefully before pulling the lever (see Issues and Strategy).