I might be misunderstanding but the link to the UPCA seems clear to me.

Art 5 UPPR relates only to EP patents with Unitary effect. The countries covered by such patents is defined in Art 3.1. Art 18.2 does derogate from 3.1 so that EP patents with Unitary effect can not exist for member states where the UPCA is not in effect. Consequenlty Art 5 does not apply to them.

Its also worth noting the difference in wording between Art 7 ( a national patent of the participating Member State) and Art 5 (law applied to European patents with unitary effect). There is presently no national law relating to European patents with unitary effect.

You assume that the effects of unitary patents (of applicants having seats in different countries) can not differ from each other because Articles 14f to 14i UPCA become national law.

Can you give the reason for that finding? Is it true in any cases? As far as I know – there is no obligation of a participating member of the enhanced cooperation to join the UPCA. In contrast, Art. 18.5 UPPR explicitly considers this situation.

Further, Art. 18.2 UPPR does not exclude application of Art. 5 UPPR. That is, infringement acts may be determined according to the national law of a state not party to the UPCA.

Maybe this discussion is of theoretical nature because the council (and hence all member states) has agreed to the UPCA. However, in determining the competencies of the CJEU the recognition of true national law by the legislator should be considered.

It has to be noted that the EP legal services has also raised that “this compromise text has not ended all legal concerns”. One reason for this is that whatever the interpretation for Art.5, the uniform protection is not substantively defined in the regulation. Therefore it has not been decided according to the ordinary legislative EU procedure, as required by Art. 118. TFEU.