Article 32Print this page
Competence of the Court
1. The Court shall have exclusive competence in respect of:
(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;
(b) actions for declarations of non-infringement of patents and supplementary protection certificates;
(c) actions for provisional and protective measures and injunctions;
(d) actions for revocation of patents and for declaration of invalidity of supplementary protection certificates;
(e) counterclaims for revocation of patents and for declaration of invalidity of supplementary protection certificates;
(f) actions for damages or compensation derived from the provisional protection conferred by a published European patent application;
(g) actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the invention;
(h) actions for compensation for licences on the basis of Article 8 of Regulation (EU) No 1257/2012; and
(i) actions concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012.
2. The national courts of the Contracting Member States shall remain competent for actions relating to patents and supplementary protection certificates which do not come within the exclusive competence of the Court.
UPC lacks competence because withdrawal of opt-out on 5 July 2023 is ineffective due to national infringement and invalidity proceedings brought before German national courts, which were pending on 1 June 2023 (Article 32 UPCA, Article 83 UPCA, Rule 5 RoP). Irrelevant whether same parties are involved in the national actions. Article 71c(2) Brussels I Regulation (recast) only concerns a situation of parallel jurisdiction and is not applicable where the competence of the UPC has been opted out. The reading used by the Court of Article 83(4) UPCA is also in line with the principle of non-retroactivity of treaties as stipulated under Article 28 VCLT.
In the view of the judge-rapporteur the Unified Patent Court has jurisdiction over infringement acts committed before the entry into force of the Agreement on a Unified Patent Court on 1 June 2023. This follows from article 3(c) UPCA and article 32(1)(a) UPCA and the absence of transitional provisions to the contrary.