The Unitary Patent Sunrise Period

In order to encourage early uptake of the UP, the EPO has announced two options that will allow European patent applicants to either delay grant of a patent application to be able to take advantage of obtaining a UP, or make an early request for a UP.  These options are available from the 1 January 2023 on the condition that the EPO has despatched its Rule 71(3) communication (the intention to grant letter) and are applicable until the entry into operation of the Unitary Patent Protection system and UPC Start Date, which is expected to be on 1 April 2023.

1. Early request for unitary effect

The EPO’s first transitional measure will enable applicants to file early requests for unitary effect, together with the requirements for the registration of unitary effect, from 1 January 2023.

If the requirements for the registration are met, the EPO will register unitary effect once the Unitary Patent system has started and communicate the date of this registration. Otherwise, it will invite the requester to correct the deficiencies or reject the request for unitary effect.

Where an early request for unitary effect is filed before the 1 January 2023 and/or if a Rule 71(3) EPC-communication has not been despatched, it will not be treated as a request for unitary effect.

 

2. Request for a delay in issuing the decision to grant a European patent

The EPO’s second transitional measure will allow applicants to request a delay in issuing the decision to grant of a European patent after a Rule 71(3) communication is dispatched and before approving the text intended for grant. The EPO will delay the mention of the grant of the European patent so that it is published in the European Patent Bulletin on or immediately after the UPC Start Date. The patentee then has a one-month deadline to file a request and meet the requirements for requesting a  UP.  A request for delay in issuing the decision to grant can only be made from 1 January 2023.

This measure ensures that applicants do not miss the opportunity to obtain a UP but allows them to defer the decision about making the request until after the UPC Start Date.