As the UPC is an entirely new court system, there is significant work involved in ensuring that it is ready to accept cases on day-one. To achieve a smooth start, the contracting EU MS have agreed the Protocol on the provisional application of the UPCA (“PAP-Protocol”). The PAP-Protocol allows for the establishment of the legal capacity and organisational capability of the UPC before the entry into force of the UPCA.

The Provisional Phase is now in progress (see here). The Provisional Phase allows for the finalisation of secondary legislation and Rules of Procedure, the Court filing system and IT infrastructure, financial budgets, and most importantly, the hiring of the UPC’s staff, including the appointment of approximately 45 legally-qualified judges and 50 technically-qualified judges.

The Provisional Phase will last until 31 May 2023.

On the Start Date, the UPCA will come fully into effect and the associated EU Regulations (Regulations (EU) No. 1257/2012 and No. 1260/2012) will apply. The EPO Rules relating to the Unitary Patent Protection will also enter into force.

The three-month sunrise period when patentees can file “opt-outs” for existing EPs will run from 1 March 2023 until May 2023.

It is important that patentees allow sufficient time to adjust their patenting strategies and review their EP portfolios to ensure these are aligned to business needs ahead of the launch of the UPC.