5 January 2023

2023 – The Year of the UPC

1 January 2023: Transitional measures introduced at the EPO to support the introduction of the Unitary Patent

As of 1 January 2023, the EPO introduced two separate transitional procedures to support the introduction of Unitary Patents. The Unitary Patent (sometimes referred to as a European patent with unitary effect) will cover 17 countries initially and potentially offer cost and administrative savings for applicants in comparison with the existing process of validating granted European patents separately in individual member states. Nevertheless, conventional validation routes will also remain open after the new system comes into effect, both for those countries which will be covered by Unitary Patents and those which will not.

The EPO’s transitional measures look to improve access to Unitary Patents for applicants with currently pending applications. In general, a Unitary Patent is only available for those applications which grant after the formal introduction of the system. This is anticipated to occur on 1 June 2023, so the first transitional measure allows applicants to request a delay to grant in order that it occurs after this date. This request must be made before responding to the Notice of Intention to Grant the application issued by the EPO.

The second transitional measure allows requests for Unitary Patents to be filed prior to the system entering into to force. These requests will then take effect once the system is live, assuming all necessary requirements are met. However, it is worth noting that an early request filed in this way does not in itself delay grant, so it will be important to take the anticipated grant date into account when proceeding in this manner.

Litigation of Unitary Patents will take place in the new Unified Patents Court, which will be established on the same day that the Unitary Patent system comes into effect. The Unified Patents Court will also have jurisdiction over existing or future “classical” European patents that have been validated in individual countries according to the conventional process. Later in the year, a “sunrise period” allowing users to opt-out classical European patents from this jurisdiction will open.

For more information and guidance on UP/UPC click here.