The EPO has recently announced that its two new transitional measures to support users’ early uptake of the Unitary Patent will become available for use on 1 January 2023. Previously, these transitional measures were due to come into force from the date Germany deposits its instrument of ratification of the Unified Patent Court Agreement (“UPCA”). The move to the 1 January 2023 is irrespective of German ratification but is aligned with the Unified Patent Court’s (“UPC’s”) recently-published roadmap, which anticipates the sunrise period beginning on 1 January 2023 following an expected German ratification sometime in December 2022.

The transitional measures will be available to users up until the date the UPC comes into force, expected to be 1 April 2023.

A summary of the transitional measures is provided below.

The transitional measures

Both transitional measures are interrelated but separate from a procedural prospective.

The measures are only available for patent applications for which a Rule 71(3) EPC communication has been despatched, indicating the EPOs intention to grant the application.

Early request for unitary effect

This measure enables an applicant to file an early request for unitary effect (i.e. before the entry into force of the UPC). This measure will allow the EPO to register the unitary effect immediately upon entry into force of the UPC, provided all other formal requirements are met.

Request for delay in issuing decision to grant

A request for unitary effect can only be made for European patents granted on or after the date the UPC enters into force. A European patent grants on the date the mention of grant is published in the European Patent Bulletin. Applicants can use this transitional measure to request the EPO delay issuing the decision to grant so the publication of the mention of grant is on or after the start date of the UPC. This measure is applicable to those applications that would otherwise be scheduled to grant during the sunrise period and makes such applications eligible for unitary patent protection.