It will not be possible to opt-out European patents after the transitional period. Instead, for these patents and applications, the UPC will have exclusive jurisdiction whether the patent is classically validated or whether UP is requested.
Patentees will simply need to apply a value comparison between UP and classical validations. The only way to avoid UPC jurisdiction for European patent applications that have not been opted-out during the transitional period will have been to file national patents and avoid the EPO.
Unless the application was opted-out during the transitional period, European patents granted after the transitional period ends will not be able to avoid the exclusive jurisdiction of the UPC. The only way to avoid the UPC will to have been to have filed national patents.
The transitional period is likely to be extended until the UPC uncertainty is resolved. We do not therefore believe it will be necessary to revert to national filings to avoid the UPC. But in any event, the status quo can be achieved up until the end of the transitional period, when the risks and rewards will be better known.
Unitary patent versus classical validations will be decided simply on value.
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