The key event that will herald the start of the new era is the “deposit” by the German government of documents with the General Secretariat of the Council of the European Union, proving its ratification of the legal agreements that govern the Unitary Patent and the UPC.

 

This is scheduled to take place in December 2022, and from 1 January 2023 transitional measures will be available at the EPO to facilitate early access to the system.  There will also be a three month “sunrise period” for the UPC starting from 1 January 2023.

Then, from 1 April 2023 these transitional measures and the sunrise period will end, as the new system will be fully operational.

 

Transitional Measures

 

The European Patent Office (EPO) is going to be responsible for the administration of the Unitary Patent.

The transitional measures will be in place to encourage early uptake of the new system, and will apply to cases where a notice of intention to grant has been issued by the EPO.

 

  1. Making an early request for unitary effect.

When the EPO grants a patent, it must then be “validated” in the specific countries which are of interest.  To obtain a Unitary Patent, a “request for unitary effect” is to be filed as part of this validation process.  This transitional measure gives the ability to file a request for unitary effect even though the system has not formally entered into force, thus granting early access to the system.

 

  1. Request for a delay in issuing the decision to grant a European Patent

After allowance, an applicant has to pay an issue fee and provide translations of claims in order to secure grant of the European Patent. This transitional measure gives the ability to request a delay in issuing the decision to grant a European patent, so that a Unitary Patent can be obtained.

 

Sunrise Period

The sunrise period is a period of three months before the UPC starts to operate, so is expected to run from January through to the end of March 2023.

During this time, it is possible to file an “opt-out” in respect of existing European Patents to exclude them from the jurisdiction of the UPC, and instead rely on the individual national courts for legal proceedings such as infringement or revocation proceedings.

 

Opt-outs can still be filed later on, but if an action is launched before the UPC in relation to a specific patent then it will not be possible to opt-out at a later time.  So, the sunrise period provides an important opportunity to secure your opt-out before third parties can initiate proceedings under the UPC.

Information accurate as of 24/11/2022

 

 

At Scintilla, we help innovative companies get a grip on their intellectual property. Our unique commercial approach combines registration of patents and trade marks with strategic input so that IP can be a springboard for business growth. If you would like to discuss your IP needs, do contact us or book a free initial consultation!