The holder of an exclusive licence is entitled to bring actions before the UPC under the same circumstances as the patent proprietor, except where the licensing agreement provides otherwise. Under Article 47.2 of the UPC Agreement, the patent proprietor must be given prior notice. A holder of a non-exclusive licence is on the other hand not entitled to bring actions before the UPC, unless the patent proprietor is given prior notice and in so far as expressly permitted by the licence agreement (Article 47.3 of the UPC Agreement).
Moreover, in any action brought by a licensee, the patent proprietor shall be entitled to join the action (Article 47.4 of the UPC Agreement).
(B) Representation of third parties before the UPC:
Under Article 48 of the UPC Agreement, representation before the UPC will be mandatory and parties will have to represented by either:
- a lawyer authorised to practise before a court of a Contracting Member State; or
- a European Patent Attorney who has acquired additional appropriate qualifications such as a European Patent Litigation Certificate. However, the issue of how a European Patent Attorney will obtain an independent right to represent clients at the UPC still has to be considered by the Contracting Member states and the Preparatory Committee.