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: the national choice is then locked. A competitor may thus « trap » an opt-out by initiating national proceedings, preventing a return to the UPC;
- once the opt-out is withdrawn, it is never again possible to file a new opt-out for the same patent (Rule 5.8 of the Rules of Procedure): this is final.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).