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EPO sets start of Unitary Patent transitional measures as 1 January 2023

November 2022

The EPO has announced that it intends to adjust the start date of its transitional measures for Unitary Patents (UP) to 1 January 2023.

From that date, applicants who have received a 71(3) letter (EPO intention to grant) may file early requests for unitary effect and requests for a delay in issuing the decision to grant a European patent (to allow for a UP request). The measures are applicable until the entry into operation of the UP system and UPC which is expected to be on 1 April 2023.

The two transitional measures are interrelated but separate from a procedural perspective. Prior to this announcement, both measures were also dependent on the deposit of Germany’s ratification of the UPC Agreement.

The EPO’s dedicated webpage has been updated, and in brief, the transitional measures are as follows:

1. Early request for unitary effect

The first transitional measure enables applicants to file early requests for unitary effect before the start of the UP system. This will allow the EPO to register unitary effect immediately at the start of the Unified Patent Court (UPC) system, provided all corresponding requirements are met. The EPO will allow early requests for unitary effect as of 1 January 2023.

Early requests for unitary effect may only be filed for European patent applications in respect of which a communication under Rule 71(3) EPC has been despatched. 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. The applicant will be invited to resubmit their request once both conditions are met.

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

The second transitional measure will provide the possibility for the applicant to request a delay in issuing the decision to grant a European patent after despatch of a communication under Rule 71(3) EPC and before approving the text intended for grant. This will make a European patent eligible for Unitary Patent protection that would otherwise have been granted before the start of the UPC, and will avoid applicants missing the opportunity to obtain a UP in the transitional phase.

The EPO will allow requests for a delay in issuing the grant as of 1 January 2023. Moreover, a request for delay may be validly filed only for European patent applications in respect of which the applicant has been informed of the text intended for grant by a communication under Rule 71(3) EPC but has not yet approved that text. A request for delay filed on the same day as the approval of the text intended for grant will be considered to have been validly filed. The request for delay must be filed using a dedicated request form provided by the EPO. A request not meeting the requirements will be deemed not to have been filed.

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