Court Of Appeal, 4 June 2024, Order Of The Court Of Appeal, UPC_CoA_79/2024

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Bardehle Pagenberg

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BARDEHLE PAGENBERG combines the expertise of attorneys-at-law and patent attorneys. As one of the largest IP firms in Europe, BARDEHLE PAGENBERG advises in all fields of Intellectual Property, including all procedures before the patent and trademark offices as well as litigation before the courts through all instances.
Art. 83(3) UPCA must be interpreted such that a valid opt out application requires that it is lodged by or on behalf of all proprietors of all national parts of a European patent...
Germany Litigation, Mediation & Arbitration
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1. Key takeaways

Art. 83(3) UPCA must be interpreted such that a valid opt out application requires that it is lodged by or on behalf of all proprietors of all national parts of a European patent

According to R.5.1(b) RoP an opt-out must be made in relation to all national parts of an EP patent. In addition, R.5.1(a) RoP first sentence, requires that all proprietors or applicants of a patent or application must lodge the opt-out Application. This Rule is not surpassing the scope of Art. 83(3) UPCA, as this Article must be interpreted to mean that all proprietors of or all applicants for a European patent file the opt-out declaration. Otherwise, the opt-out is invalid.

2. Division

Court of Appeal Luxembourg

3. UPC number

UPC_CoA_79/2024

4. Type of proceedings

Appeal according to 220.2 RoP

5. Parties

Appellant/Defendant in the main proceedings before the court of first instance:

  • Neo Wireless GmbH & Co KG (Ratingen, DE)

Respondent/Claimant in the main proceedings before the court of first instance:

  • Toyota Motor Europe NV/SA (Evere, BE)

6. Patent(s)

EP 3876490

7. Body of legislation / Rules

  • Art. 83 (3) RoP
  • R. 1 RoP
  • R. 5.1 RoP
  • R. 190 RoP

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