October 2022 The Unitary Patent System is due to start in early 2023
Those interested in the European Union’s new Unitary Patent System will know the start of this new system has been delayed several times since it was originally agreed upon by the participating EU Member States. However, this new aspect of European patent practice now seems highly likely to open for business in early 2023. Now is therefore the time for applicants of European patent applications and proprietors of European patents to familiarise themselves with the options available to them once the Unitary Patent System enters into force.
As mentioned in our articles of June 2022 regarding unitary patents and the Unified Patent Court, the European Union has in recent years laid the groundwork for a single patent having effect across many of the EU Member States, as well as a new court for enforcing European patents across the EU.
Since it was originally signed in 2013, the implementation of the Agreement on a Unified Patent Court (the “UPC Agreement”) has been a slow process, but it seems the start of this exciting new chapter in European patent practice is now just around the corner.
On 6 October 2022, the UPC Preparatory team published its “Implementation roadmap” on the UPC website. According to this document, Germany is expected to formally ratify the UPC Agreement in mid-December 2022, triggering the start of the so-called “sunrise period” on 1 January 2023. The sunrise period is then due to last for three months, which means the UPC Agreement is expected to formally enter into force on 1 April 2023.
The option of validating a European patent with unitary effect, so as to obtain a unitary patent for the participating EU Member States, will therefore be available for any European patent application having a grant date on or after 1 April 2023. For European patent applications where the grant and printing fees are paid to the EPO after 1 January 2023, applicants will additionally have the option of delaying the official grant date of their patent until the new system comes into force on 1 April 2023.
For applicants wishing to avoid this new system altogether, the start of the sunrise period also makes it possible to opt existing European patents out of the jurisdiction of the UPC. Whilst it will still be possible to opt-out during a transitional period once the UPC Agreement enters into force, this can only be done if the European patent in question is not already the subject of proceedings before the UPC. Thus, in order to avoid being “locked into” the new system, those wishing to avoid the new system would be wise to opt their patents out during the sunrise period.
With the start of the sunrise period appearing to be imminent, it is vital that applicants of European patent applications and proprietors of European patents familiarise themselves with the options available to them for their European patent portfolio. If you are unsure about this new chapter in European patent practice, then Schlich would be happy to discuss this further with you to help you navigate the new system.
