Article 28

Right based on prior use of the invention

Any person, who, if a national patent had been granted in respect of an invention, would have had, in a Contracting Member State, a right based on prior use of that invention or a right of personal possession of that invention, shall enjoy, in that Contracting Member State, the same rights in respect of a patent for the same invention.

Case Law

IPPT20240703, UPC CFI, LD Düsseldorf, Kaldewei v Bette
No prior use rights in each Contracting Member State (article 28 UPCA). The narrow wording of the provision is clear. The user of the technology according to the invention can only invoke the rights granted to him by the respective national regulations of the respective contracting member states. In this respect, the existence of a right of prior use must be submitted for each of the protected states under their conditions. The standard does not provide for a European right of prior use, but is a sliding reference to the respective national law.