Jurisdiction of national Courts over Italian portions of non-opted-out European Patents
10 Jan 2026
Court of Venice, 12 November 2025
With this recent decision, the Court of Venice found that it lacked jurisdiction over a infringement claim of the national portion of a European patent held by the plaintiff, on the assumption that “unless the UPC jurisdiction has been expressely waived [so-called opt-out], European patent cases must be brought exclusively before the UPC”. According to the Court, in light of Articles 83 and 32 UPCA, concurrent jurisdiction between UPC and national Courts should not be interpreted as “the possibility for the owner to choose, in individual cases, which court to apply to”. Rather, given the “uncertainties and discrepancies” that this would cause to the detriment of both potential defendants and plaintiffs, during the transitional period jurisdiction would as a matter of principle lie with the UPC, unless the applicant formally opted out, in which case it would instead lie with the national Court.
However, the reasons given by the judges are unconvincing in many respects.
First, taking into account the literal wording of the provisions referred to by the Court, Article 83(1) UPCA states: “During a transitional period of seven years after the date of entry into force of this Agreement, an action […] may still be brought before national courts or other competent national authorities”. It is therefore clear that recognizing the exclusive jurisdiction of the UPC, absent an opt-out before the end of the transitional period, would render the provision meaningless. The interaction between paragraphs 1 and 3, as well as between Article 83 and Article 32 UPCA, as outlined by the Court of Venice, cannot therefore be considered correct.
Similarly, Article 71c (2) of Regulation (EU) No. 2002/1215, as amended by Regulation (EU) No 2014/542 (so-called “recast”), expressly provides for the possibility, during the transitional period, of bringing proceedings simultaneously before both the UPC and “a court of a Member State”, requiring in such cases the application of Articles 29 to 32 of said Regulation on the subject of lis pendens and related actions.
Ultimately, it would be desirable for the Court of Venice to reconsider its position, especially given the (numerous) opposite rulings on the same issue, coming primarily from the UPC.
Giovanni Volpi
