Although such declarations are still possible even now that the sunrise period has expired, there is the risk of the patents being bound to the not-yet-established UPC by patent infringers who tactically file suits at the UPC beforehand.
Those who have opted out should keep the possibility of an opt-in in mind: this step – i.e. back under the jurisdiction of the UPC – will make sense if the UPC successfully establishes itself in the legislator’s view and cases and judges begin to migrate from the national courts to the UPC. This effect, which is essentially hoped for, may lead to reduced capacities at the national courts. If this is the case, there is now conversely a risk that patent infringers will file tactical suits against patents with opt-out declarations at a national court. This would in turn bind the patent concerned to the national courts, which would not be desirable for the reasons mentioned above.
Therefore, those who have opted out must now stay alert, keep a close eye on the UPC – and possibly opt back in.
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