In its first two months, the UPC CMS has seen some opt-out action – but not as much as most commentators had predicted
A flurry of activity on the UPC’s Case Management System (CMS) was witnessed since the beginning of the sunrise period on 1st March 2023, with legal professionals registering as UPC representatives and rightsholders electing to opt out of some of their European patents and applications. We’ve obtained data on the first couple of months of opt-out activity in the CMS, and provide some quickfire statistics here:
Opt-out requests were filed for just over 60,000 cases in under 9 weeks. This number is much smaller than many commentators had predicted, as it represents a mere sliver of the vast number of European patents and applications that could be opted out (with the EPO having granted almost 1,000,000 patents between 2013-2022). With the number of daily opt-out requests increasing rapidly and less than a month until the UPC opens its doors on 1st June 2023, we may see a significant number of cases falling under the UPC’s jurisdiction based on the current number of opt-outs. Alternatively, perhaps we will see a very steep increase in the number of daily opt-out requests being filed in the last weeks. It is possible many opt-outs might be filed rapidly using the API provided by the UPC Registry, and of course, opt-outs remain possible after 1st June 2023 provided no UPC action has already commenced.
The subject-matter classes with the most opt-out requests so far include electrical machinery (9.0%), organic chemistry (6.6%), medical technology (6.3%), computer technology (6.1%), and pharmaceuticals (5.4%) (IPC classes H05, A61, and G06).
The subject-matter classes with the fewest opt-out requests so far include nanotechnology (0.07%), IT (0.3%), semiconductors (1.0%), and environmental technology (1.1%) (IPC classes B81, G06, H01, and C02).
One of the earliest applications opted out was filed in 1979 and granted in 1986.
The UPC Registry also provides a list of over 2,500 patent attorneys and lawyers who have registered as UPC representatives, with most based in Germany, the UK, France and Italy.
Legal professionals and other stakeholders alike will continue to watch opt-out trends with much interest. Data used in this article are correct up to 30th April 2023.