In view of the forthcoming introduction of the Unitary Patent, the European Patent Office (EPO) has now declared that it will allow requesting a delayed grant and early requests for unitary effect, and has provided the rules applying to such requests.
By publishing two Notices and one Decision of the President on 19 January 2022, the EPO provided an immediate reaction to the start of the provisional application of the Agreement on a Unified Patent Court (UPCA) that was triggered by Austria´s deposit of ratification on 18 January 2022.
Thus, as soon as Germany has deposited its instrument of ratification of the UPCA (which is planned to happen once the Unified Patent Court (UPC) is operational, i.e. between three and four months before the entry into force of the UPCA), it will be possible to request a delay of a decision to grant a European patent so that the mention of the grant in the European Patent Bulletin will be published on or immediately after the date of entry into force of the UPCA. Such request of 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.
Moreover, the EPO will also allow the filing of requests for unitary effect already as of the date of deposit of the Federal Republic of Germany’s instrument of ratification of the UPCA. Such 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 dispatched.