UPC Court of Appeal decides that national proceedings before the start of the UPC do not prevent withdrawal of opt-out

The UPC Court of Appeal (CoA) has concluded that only national proceedings brought after the UPC commenced can act to prevent the withdrawal of the registration of an opt-out of that patent from the UPC's jurisdiction (AIM v Supponor (CoA 489/2023) issued on 12 November,  published on the UPC website today). This reverses the decision of the court of first instance in this case (the Helsinki Local Division) which had found that even proceedings commenced before the UPC started hearing cases could act to block a subsequent withdrawal of an opt-out.  

This is a significant finding as, previously, following the first instance decision, those patentees that had opted out EPs from the UPC which had been the subject of any national proceedings before the UPC commenced were held not to be able to withdraw that opt-out to take advantage of enforcement via the UPC. Now the CoA has decided that only proceedings commenced during the transitional period (the first seven years of the UPC during which both the UPC and national courts have jurisdiction over non-opted out EPs) will have this impact. This is so whether actions commenced in the pre-UPC era are completed or still pending/on foot, since the CoA has held that [national] "[p]roceedings that were brought prior to the transitional period, whether still pending or not, do not stand in the way of an effective withdrawal of an opt-out."