UPCEvidence from your search

Declaration of non-infringement

DNIArt. 32(1)(b) UPCA; Rules 61 to 77 RoP

An action at the Unified Patent Court for a ruling that a specific act, such as making or selling a product, does not infringe a European patent. You choose the moment instead of waiting to be sued, and one judgment covers every UPC state where the patent has effect.

Claim 1 against D1 and D2 Limitation D1 D2 1a 1b 1c 1d 1e Disclosed [0017] Disclosed [0042] Partial Fig. 3 Disclosed [0051] Not found Disclosed [0023] Disclosed [0064]
Every limitation, a status and a location.

At a glance

Deadline
Any time; ask the owner first
Official fee
€14,600 + by value
Proceeding
Court action · named
Agent needed
Yes
Owner faces
Lawsuit, defence in 2 months
Who can file
Any person doing, or proposing to do, a specific act, against the patent proprietor or a licensee entitled to sue for infringement under Art. 47 UPCA (Rule 61.1 and 61.2 RoP). If the owner has not accused that act of infringement, the claimant must first ask in writing for an acknowledgment of non-infringement with full particulars of the act, and may sue only if the owner refused or did not answer within one month (Rule 61.1(a) and (b)).
Deadline
No time limit while the patent is in force and not opted out. The Defence is due two months after service of the Statement (Rule 67), the Reply within one month and the Rejoinder one month after the Reply (Rule 69).
Language
Before the central division, the language in which the patent was granted (Art. 49(6) UPCA; Rule 64 with Rule 45 RoP). If the parties agree on a local or regional division (Art. 33(7) UPCA), a language of that division under Rule 14.
Anonymous
No. The claimant is a named party, and the Statement must give the particulars of Rule 13.1(a) to (h) RoP and show that the Rule 61 conditions are met (Rule 63(a)).
Representation
Mandatory: a lawyer authorised to practise before a court of a Contracting Member State, or a European Patent Attorney with an appropriate qualification such as the European Patent Litigation Certificate (Art. 48(1) and (2) UPCA; Rule 8.1 RoP).
How it is filed
The representative lodges a signed Statement for a declaration of non-infringement electronically in the UPC Case Management System, using the official online forms (Rule 4.1 RoP), at the central division (Art. 33(4) UPCA). If the owner has already sued the same party on the same patent in a local or regional division, the DNI may only be brought there.
Effect
The Court declares that the specified act does not, or the proposed act would not, infringe the patent, binding the parties for every UPC state where the European patent has effect (Rule 61.1 RoP; Art. 34 UPCA). The patent stays in force; to remove it, a revocation action can be lodged together with the DNI (Rule 77).
Party status
Full adversarial court action: the claimant and the proprietor or licensee are parties, with written, interim and oral procedures and appeal to the Court of Appeal. If the owner sues for infringement in a local or regional division within three months of the DNI, the DNI is stayed (Art. 33(6) UPCA; Rule 76.3 RoP).

Official fee, in detail

WhenFee
Fixed fee for the action (Rule 70 RoP)€14,600
Value of the action up to and including €500,000No value-based fee
Value up to and including €1,000,000+ €5,300
Value up to and including €2,000,000+ €17,200
Value up to and including €5,000,000+ €42,400
Value up to and including €10,000,000+ €86,100
Value up to and including €50,000,000+ €331,000
Value more than €50,000,000+ €430,300
Small or micro enterprise (Rule 370.8 RoP)50% of the fixed and value-based fee
DNI lodged together with a revocation action (Rule 77 RoP)+ €26,500 revocation fee

Table of Court Fees as amended on 4 November 2025, applying to actions filed from 1 January 2026. The fixed fee is paid on filing; the judge-rapporteur sets the value during the interim procedure (Rule 74.1 RoP) and the value-based fee is due only if it exceeds €500,000. A small or micro enterprise must affirm its status in the Statement to pay 50%. Office fees only, checked 13 October 2026.

First page of the Court of Appeal order in the DNI action Omnia v Sidel 10 pages · PDF

A real case, as decided

Court of Appeal order in the DNI action Omnia v Sidel

Omnia and ACMI asked for a declaration that their labelling module does not infringe two Sidel patents. On 21 September 2026 the Court of Appeal confirmed that the UPC hears the action, despite opt-outs filed after it was lodged.

Brought by
OMNIA Technologies S.p.A., ACMI Labelling S.r.l. and ACMI S.p.A.Trevisan & Cuonzo
Proprietor
Sidel Participations SAS
Appeal
UPC_CoA_90/2026From UPC_CFI_799/2026; EP 4 594 194 and EP 4 624 351
Decided
21 September 2026UPC Court of Appeal, Luxembourg

What it is

Declaration of non-infringement, in brief

An action for a declaration of non-infringement asks the Unified Patent Court to rule that a specific act, such as making or selling a product, does not infringe a European patent, or that a planned act would not. It is the mirror image of an infringement action: the would-be infringer chooses the moment and goes first, instead of waiting to be sued.

It is brought at the central division, unless the owner has already sued the same party on the same patent in a local or regional division, and a single judgment covers every UPC state where the patent has effect. If the owner has not accused the act, the claimant must first ask in writing for an acknowledgment of non-infringement and wait a month. The patent itself is not touched; a revocation action can be joined to attack its validity.

Use it when

  • You are about to launch a product in UPC countries and want a court ruling that it is clear of a specific European patent.
  • The patent owner has sent a warning letter or asserted infringement and you want to pick the timing and the central division rather than wait to be sued.
  • You want one decision covering all UPC states where the patent has effect instead of separate national declarations.

Choose another route when

Where IPtorch fits

The prior art for the revocation action beside it.

A DNI is often lodged together with a revocation action (Rule 77 RoP). IPtorch's invalidity search builds the validity case; your representative drafts both pleadings.

  • Every claim split into its limitations and charted against the closest prior art, with the quoted passage and its location behind each cell.
  • At least 50 references read in full and ranked, the strongest first, ready for a revocation action or a counterclaim.
  • When you lodge a revocation action with the DNI, the builder drafts that statement for revocation, unsigned.

Where these go wrong

What to check before filing.

  • If the owner has not accused you, skipping the written request for acknowledgment with full particulars of the act, or suing before the one-month period runs out, exposes the action to dismissal (Rule 61.1 RoP).
  • An infringement action by the owner in a local or regional division within three months of your filing stays the DNI (Art. 33(6) UPCA, Rule 76.3 RoP), and a DNI on a patent the owner has already asserted against you in a local division can only be brought in that division (Art. 33(4)).
  • The value-based fee depends on the value the judge-rapporteur fixes, not on your own estimate (Rule 74.1 RoP), so a low valuation does not cap the bill.