The European Patent Office has set 1 January 2023 as the starting date for the application of the transitional measures intended to support an early uptake of the Unitary Patent by holders of European Patent Applications; the move appears as a sign of confidence that the Unitary Patent and Unified Patent Court will actually open on 1 April 2023 as expected.
The European Patent Office (EPO) announced on 14 November 2022 that its transitional measures concerning the Unitary Patent will take effect as of 1 January 2023, as per two Decisions of the President of EPO dated 11 November 2022.
The transitional measures are intended to support an early uptake of the Unitary Patent by European patent applicants. They apply to pending European patent applications for which the applicant has already received the EPO’s communication under Rule 71(3) EPC (by which the EPO informs the applicant of the text intended for grant, but that such text has not yet been approved).
Under the transitional measures, as of 1 January 2023 holders of European patent applications that meet the above requirement may:
- file early requests to apply the “unitary effect” to the patent as soon as it is granted;
- request a delay in issuing the decision to grant the patent; this is to avoid that applicants for European patents due to be granted shortly before 1 April 2023 miss the opportunity to obtain a Unitary Patent in the transitional phase.
It is interesting to note that under two previous Decisions of the President of EPO (both dated 22 December 2021 and repealed by the Decisions of 11 November 2022), the above transitional measures were to take effect upon the date of the deposit of Germany’s ratification of the Unified Patent Court Agreement. By deciding to make 1 January 2023 the starting date for the application of transitional provisions, the EPO appears to show confidence that Germany will actually have ratified the Unified Patent Court agreement by that date, and therefore that 1 April 2023, the “expected date” announced with some caution by the Preparatory team of the Unified Patent Court a few weeks ago, is most likely to hold true.
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