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Comparison between revocation action before the UPC and opposition proceedings at the EPO

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Revocation action before the UPC

(see also our Information sheet “Revocation action before the UPC”)

Opposition proceedings at the EPO

Who?

Revocation action before the UPC

Any person, or any body entitled to take action under its national law,
concerned by the patent

Opposition proceedings at the EPO

Any person
(Opposition filed by a Strawman allowed)

When?

Revocation action before the UPC

Any time from the grant of a Unitary patent / European patent (no opt-out) / SPC even without having to file notice of opposition with the EPO

Opposition proceedings at the EPO

Within 9 months from the grant of a Unitary patent / European patent

Where?

Revocation action before the UPC

Central Division
or, if the parties agree, any Local or Regional Division

Opposition proceedings at the EPO

EPO

Language

Revocation action before the UPC

Central Division: language of the granted patent
Local or Regional Division: official language of the division
or one of the EPO languages designated by the division
(see our Information sheet “Language of the procedure before the UPC”)

Opposition proceedings at the EPO

EPO languages

Grounds

Revocation action before the UPC

Art. 138 EPC
Art. 139 (2) EPC: UP revoked entirely / national part of the EP revoked

Opposition proceedings at the EPO

Art. 100 EPC

Official fees

Revocation action before the UPC

20 000 Euros

Opposition proceedings at the EPO

840 Euros

Time limits for the proprietor

Revocation action before the UPC

Within two months of the Statement for revocation:
Defence to revocation which may include:
Application to amend the patent (auxiliary requests allowed),
and Counterclaim for infringement
(see also our Information sheet “Revocation action before the UPC”)

Opposition proceedings at the EPO

Within four months of the notification from the Opposition Division:
Response to the opposition which may include:
Amendments of the patent (auxiliary requests allowed)

Time limits for patent amendments

Revocation action before the UPC

Within two months of the Statement for revocation along with the
Application to amend the patent
No other possibility of further claim amendments without the permission
of the UPC

Opposition proceedings at the EPO

Within four months of the notification from the Opposition Division
Within the time limit set in the summons to attend oral proceedings
During oral proceedings if accepted by the Opposition Division

Language of the patent amendments

Revocation action before the UPC

Language of the granted patent with a translation:
- in the language of the proceeding and
- in the language of the defendant’s domicile for a Unitary patent

Opposition proceedings at the EPO

Language of the granted patent

Intervention

Revocation action before the UPC

Intervention of any person showing a legal interest
in the result of the revocation action is admissible
before the closure of the written procedure
unless the UPC orders otherwise

Opposition proceedings at the EPO

Intervention of the alleged infringer admissible only if
the declaration is filed within three months of the date on which:
- the infringement action was filed, or
- an action for declaration for
non-infringement was filed

EP / UPC parallel proceedings

Revocation action before the UPC

The UPC may stay proceedings in case of opposition proceedings
relating to the same patent where a decision may be expected rapidly
and may request the EPO to accelerate the proceedings

Opposition proceedings at the EPO

EPO can accelerate opposition proceedings upon the request of UPC
in case of revocation action relating to the same patent

Means of obtaining evidence

Revocation action before the UPC

Art. 53 UPCA, Art. 59 UPCA and Art. 60 UPCA
Broader means of evidence at the UPC than before the EPO
as they may include:
- ordering conducting comparative tests and experiments
- ordering a party or a third party to produce evidence
- ordering measures to preserve evidence

Opposition proceedings at the EPO

Art. 117 EPC

Effects

Revocation action before the UPC

Patent held valid, partially valid or revoked
for the UPC Member States
(17 Member States)

Opposition proceedings at the EPO

Patent held valid, partially valid or revoked
for the EPC Member States
(39 Member States)