Casalonga UPC rules of procedure
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Rule 61Declaration of non-infringement

1. A declaration that the performance of a specific act does not, or a proposed act would not, constitute an infringement of a patent may be made by the Court in proceedings between the person doing or proposing to do the act and the patent proprietor or licensee entitled to commence infringement proceedings pursuant to Article 47 of the Agreement [1], if the patent proprietor or such licensee has asserted that the act is an infringement, or, if no such assertion has been made by the patent proprietor or licensee, if:

(a) that person has applied in writing to the proprietor or licensee for a written acknowledgment to the effect of the declaration claimed, and has provided him with full particulars in writing of the act in question; and

(b) the proprietor or licensee has refused or fail
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[1-
(1) The patent proprietor shall be entitled to bring actions before the Court.
(2) Unless the licensing agreement provides otherwise, the holder of an exclusive licence in respect of a patent shall be entitled to bring actions before the Court under the same circumstances as the patent proprietor, provided that the patent proprietor is given prior notice.
(3) The holder of a non-exclusive licence shall not be entitled to bring actions before the Court, unless the patent proprietor is given prior notice and in so far as expressly permitted by the licence agreement.
(4) In actions brought by a licence holder, the patent proprietor shall be entitled to join the action before the Court.
(5) The validity of a patent cannot be contested in an action for infringement brought by the holder of a licence where the patent proprietor does not take part in the proceedings. The party in an action for infringement wanting to contest the validity of a patent shall have to bring actions against the patent proprietor.
(6) Any other natural or legal person, or anybody entitled to bring actions in accordance with its national law, who is concerned by a patent, may bring actions in accordance with the Rules of Procedure.
(7) Any natural or legal person, or anybody entitled to bring actions in accordance with its national law and who is affected by a decision of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012 is entitled to bring actions under Article 32(1)(i).