Before discussing opt-out, it is essential to set the temporal scene: the transitional period and its curious prelude, the sunrise period.
The Transitional Period
For a seven-year transitional period starting from the entry into force of the agreement (June 1, 2023), actions relating to classical European patents (both infringement and revocation) may still be brought at the choice of the parties before either national courts or the UPC (Article 83(1) of the Agreement on a Unified Patent Court). This is referred to as parallel or concurrent jurisdiction.
This period may be extended up to a total of fourteen years (Article 83(5)). This provides practitioners with time to familiarize themselves with the new court—and to assess the robustness of its case law before entrusting it with their most valuable patents.
The Sunrise Period
Just before the system’s launch, a so-called sunrise period ran from March 1 to May 31, 2023. Its purpose: to allow proprietors to record their opt-outs in advance, ensuring their European patents would fall outside the UPC’s jurisdiction from day one.
The stakes were not merely theoretical: without an opt-out recorded before June 1, a competitor could have, from the opening day, filed a revocation action with the UPC—thereby locking the possibility of opting out (see Opt-out: Exercise and Effects). Hence the rush to file opt-outs during those three months.