Rule 5A – Application to remove an unauthorised application to opt out or unauthorised withdrawal of an opt-out

1. Without prejudice to the lodging of an Application to opt out or withdraw an opt-out in accordance with Rule 5, the proprietor of a European patent or the applicant for a published application for a European patent or holder of a supplementary protection certificate in relation to which an Application to opt out or withdraw the opt-out is entered in the register may lodge an Application to remove the entry of an unauthorised Application to opt out or withdrawal of the opt-out from the Registry setting out the reasons.

2. The Registrar shall mark the status of the Application to opt out or withdraw the opt-out entered in the register as subject to an Application for removal. The Registrar shall decide on the Application for removal as soon as practicable. If the final decision is to remove the Application to opt out or withdrawal of an opt-out the Registrar shall delete it in the register.

3. The decision on the Application for removal may be subject to an Application for review to the President of the Court of Appeal. The Application for review shall be lodged with the Registrar in one of the official languages of the European Patent Office, within one month of the notification of the challenged decision setting out the request, facts, evidence and arguments. If the Application for review is allowable, the President of the Court of Appeal shall order the Registrar to remove the opt-out or the withdrawal of the opt-out.

Case Law:

UPC CFI, LD Vienna, 13 September 2023, CUP&CINO v Alpina Coffee
Application to opt-out (6 July 2023) is ineffective after commencement of the action before the Court (27 June 2023) (Rule 5(6) RoP). The blocking mechanism means that the jurisdiction of the UPC can no longer be withdrawn. Request for interim measures is an “action” within the meaning of Rule 5 and 5A RoP and Article 83(3) UPCA.