UPC: Pre-grant DNI Action May Pre-empt Opt-out

Background

On 3 March 2026, Omnia et al. (the claimants) filed a declaration of non-infringement ("DNI") action against two pending European patent applications: EP 4 594 194 ("EP194") and EP 4 624 351 ("EP351").

At the time the action was brought, intention to grant under Rule 71(3) EPC had been issued for EP194, but the patentee had not yet taken the necessary steps for the application to proceed to grant. As for EP351, intention to grant had not yet been issued.

Sidel (the defendant) subsequently filed opt-out applications for EP194 and EP351 on 2 and 8 April 2026. On 9 April, Sidel objected to the UPC’s competence to hear the DNI action under Article 32 UPCA. Sidel argued that Article 32 concerns granted patents ("patent granted under the provisions of the EPC") and not pending applications, and that permitting an action at the application stage would, among other things, create uncertainty as to the patent’s ultimate territorial scope.