UPC CoA, 2 June 2025: UPC has competence regarding acts pre-dating the UPCA or during (a withdrawn) opt-out

The UPC has competence regarding acts committed before entry into force of the UPCA and during the opt-out of a patent (Article 32 UPCA, Article 83 UPCA). 

The wording of Art. 32(1) UPCA does not provide for any temporal limitation of the exclusive competence of the Court. 

The option to opt-out is limited to the choice of forum and does not provide, as a result of such a choice, for a partial or limited competence of the elected court, whether as to the subject matter (the patent infringement) of the action or as to the time period for which the chosen court is competent. Since Art. 32 UPCA was in effect at the time of deciding on the competence of the Court, it is not being applied retroactively to determine competence. 

When deciding to withdraw the opt-out, the patent proprietor chooses to bring the patent back under the (exclusive) competence of the Court. The provisions on withdrawal do not provide for a partial or limited withdrawal.

IPPT20250602, UPC CoA, XSYS v Esko