UPC Local Division: Applicable Law

The determination of the applicable substantive law in the case of an alleged infringement is to be strictly distinguished from the question of jurisdiction to decide on the action. When determining the applicable substantive law, the fundamental principles of the prohibition of retroactivity, as enshrined and recognized in European and international law, must be observed. In compliance with these principles, the following applies with regard to the question of whether the substantive law under the UPCA or the substantive national law of the UPCA Member States is to be applied to acts that infringe European bundle patents: For acts committed after the entry into force of the UPCA, the substantive law under the UPCA applies; for acts committed before the entry into force of the UPCA, the substantive national law applies; for continuous acts that began before the entry into force of the UPCA (1 June 2023) and continued after the entry into force, the substantive law under the UPCA also applies. In assessing whether infringing acts in this sense are "continuous" acts that justify the application of the UPCA, an overly formalistic view that runs counter to the objectives of the agreement is to be avoided. What is decisive is a normative and thus evaluative view, not a purely natural or formal view, in which the only question asked is whether the acts can be separated purely factually. Against this background, it is justified to apply the UPCA as the harmonized national law of the contracting member states to continuous acts if the infringer continues their infringing conduct after the entry into force of the new regulations on 1 June 2023, even though they could have ceased this conduct. In such a case, however, each party remains free to invoke national law provisions that are more favourable to them for acts committed before 1 June 2023 compared to the UPCA regulations. The party invoking a national norm must specifically set it out and sufficiently substantiate why the relevant national regulation supports its submission (LK Mannheim 11. 3. 2025, UPC 159/2024).