Change To UPC CMS Opens Door To Opt Out Challenge

Following the introduction of the new Unified Patent Court (UPC) Case Management System (CMS), it is now possible to view the opt out submissions of third parties. This includes submissions previously made under the old CMS, including opt outs filed in the sunrise period before the UPC opened its doors.

Under the old CMS, it was only possible to tell that an opt out had been filed and by whom. Therefore there was limited opportunity to check the validity of a third party opt out. Under the new system it is possible to view the opt out document(s) actually filed. This will allow third parties to check opt out documents for completeness and accuracy. This could potentially lead to more challenges against the validity of an opt out, for example on the basis that not all proprietors for all states consented to the opt out. In such a case, as already confirmed by the Court of Appeal in Neo v Toyota, the opt out is deemed invalid and a central revocation action can be brought at the UPC