The decision of the Court of Venice of November 12, 2025 (R.G. 10432/2024) addresses the issue of jurisdiction in a dispute concerning the infringement of a European patent, with specific reference to the alternative between the jurisdiction of the national court and that of the Unified Patent Court (UPC), pursuant to Article 83 of the Agreement on the Unified Patent Court (EU Council Agreement 2013/C 175/01). In general, disputes concerning European patents with unitary effect fall within the jurisdiction of the UPC, in accordance with Article 32 of the Agreement. This provision constitutes the rule of the system, while Article 83 introduces an exception, providing for a transitional period during which concurrent jurisdiction between the UPC and national courts may arise. With the entry into force of the Unified Patent Court on June 1, 2023, all European patents granted and European patent applications will automatically be subject to the jurisdiction of the UPC, with the result that judgments issued by the UPC will be valid in all countries participating in the Unitary Patent system. This jurisdiction applies unless the patent holder exercises the right to exclude the jurisdiction of the UPC through the opt-out procedure provided for in Article 83 of the Agreement. In fact, the first paragraph of the aforementioned provision stipulates that, for a transitional period of seven years—the so-called sunrise period—from the entry into force of the Agreement, the proprietor may decide to bring patent proceedings concerning an EU patent before the national courts. The following third paragraph then establishes that the proprietor may waive the exclusive jurisdiction of the UPC, provided that no action has already been brought before the Unified Court: in this case, in fact, jurisdiction lies exclusively with the UPC, precluding the exercise of the opt-out. In order for the withdrawal to be valid, the proprietor must notify the registry of this decision at least one month before the end of the transitional period. The withdrawal then takes effect upon entry in the register. On this point, the Venetian court clarifies that the provision for “concurrent” jurisdiction during the transitional period cannot be understood as giving the patent holder the right to choose, on a case-by-case basis, which court to bring proceedings before. Such an interpretation would, in fact, introduce obvious uncertainties in its application: on the one hand, to the detriment of potential defendants, who would be exposed to a choice left to the discretion of the owner; on the other hand, to the detriment of those who intend to bring an action against the latter in relation to a European patent. In the case decided by the Venice Court, the holder of the European patent had not formally waived the jurisdiction of the UPC. It follows, therefore, that jurisdiction was to be considered exclusively vested in the Unified Patent Court. Consistent with this conclusion, the judge then referred to Regulation (EU) No. 1215/2012 on jurisdiction and the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In particular, Article 27 of the Regulation provides that a court of a Member State seised of a dispute falling within the exclusive jurisdiction of a court of another Member State must declare of its own motion that it has no jurisdiction. A similar rule is contained in Article 25 of the Lugano Convention, which requires the court to raise the lack of jurisdiction of its own motion in favor of the court with exclusive jurisdiction, identified, in this case, as the UPC. The ex officio finding of lack of jurisdiction is also based on Article 11 of Law No. 218/1995, where Italian jurisdiction is excluded by an international rule. It follows that, in the absence of an express and formal withdrawal of the jurisdiction of the UPC, made enforceable against third parties by entry in the register of the Unified Court, disputes concerning European patents must be brought exclusively before the UPC. Otherwise, only if a valid opt-out has been exercised may the European patent be enforced or contested solely before the national courts. On the basis of these considerations, the Court of Venice concluded by declaring, with reference to the European patent at issue, that the national court and the relevant specialized section lacked jurisdiction in favor of the Unified Patent Court.
2026 - Morri Rossetti
