Parallel EPO Opposition and Nullity Action at the Federal Patent Court?

Art 81 (2) German Patent Act requires that an action for revocation of a patent cannot be filed as long as a notice of opposition can still be filed or opposition proceedings are still pending.

Pretty clear one may think: "cannot be filed as long as ... can still be filed". That sugggest tha a nullity action filed within the nine months opposition term or as long a an opposition is pending or appealable is inadmissible.

However, in its recently published decision X ZR 47/22 (Aminopyridin, the German Federal Court of Justice (BGH) held that for assissing whether a nulltity action meets this condition and is therefore is inadmissible, the date of the nullity decision is relevant, rather than the filing date of teh action.

As much as this is practically relevant, it does not seem to be what § 81 (2) GPA suggests. On the other hand, as the UPC Agreement does not have a similar requirement, a nullity action with the Unitary Patent Court is admissible anytime, even if there is an opposition pending with the EPO.

From a practical standpoint, an "early" nullity action faces the challenge that the scope of the contested patent is still unknown upon filing the action.

A more profound question is, why the plaintiff should even file an early nullity action during a still pending opposition. Well, I can imagine a situation where new prior are surfaces that cannot be submitted with far advanced appeal proceedings due to to the strict procedural rules of the EPO Appeal Boards.