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Starting date of transitional measures of EPO for early uptake of the Unitary Patent

By: Paola Rua

January 13, 2023

On 5 December 2022, the Unified Patent Court announced the postponement of the ‘sunrise period’ to March 1, 2023, and the entry into force of the Unified Patent Court Agreement (UPCA) to June 1, 2023.

Despite this delay, the two (2) transitional measures offered by the EPO to support users in an early uptake of the Unitary Patent are available since January 1, 2023. In this sense, for European patent applications for which a communication under Rule 71(3) EPC has been despatched, it is possible to file i) an early request for unitary effect or ii) a request for a delay in issuing the decision to grant a European patent.

The Unitary Patent package aims to provide a common patent protection and litigation system for all participating EU Member States. Hence, with the entry into force, an applicant will have the possibility of having a single European patent with unitary effect, that is, the so-called ‘Unitary Patent’, and a single litigation system for a major part of the European market with the Unified Patent Court (UPC). The Member States which have ratified the UPCA (Unified Patent Court Agreement), and which will participate in the Unitary Patent system when it starts are Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden. Spain, Poland, and Croatia are not part of the Agreement and thus, validations after grant will still be needed to enforce IP rights in these countries.

We will keep you updated on any further development.

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