UPC opening planned for 1 April 2023


The “Preparatory team” of the Unified Patent Court (UPC) has published here an implementation roadmap. This shows (with an accompanying description) the key activities and milestones from now until the UPC’s opening, which is currently estimated to be 1 April 2023, noting that this reflects the current state of the project and may be subject to change.

Germany’s deposit of its instrument of ratification of the UPC Agreement will determine when the UPC opens, the UPC Agreement providing that this will be on the first day of the fourth month after that deposit. Therefore, this step will not be taken until there is confidence that all preparations will be complete for opening on that date. The published roadmap assumes that the deposit will be made during December. A “sunrise period” of 3 months, during which European patents may be opted out of the UPC’s jurisdiction before the UPC opens, would then start on 1 January with the court itself opening 1 April. (Opt-outs may still be made during a transitional period of at least 7 years after the UPC opens.)

One key activity is the recruitment of judges and the roadmap shows 85 being recruited this week. There will then be further recruitment to fill a few remaining positions and also create a reserve list so the number of judges can be increased when necessary. For more on judges, see here.

Other key activities include the opening of functionalities in the Case Management System at the start of the sunrise period to allow users to register as representatives and to opt-out patents, and then, when the UPC opens, the opening of “entry into force” functionalities allowing users to lodge cases. Before each of these steps, users will be able to practice using the CMS. Regarding the new, strong CMS authentication scheme planned for last month (reported here), the UPC IT team has announced this is now scheduled for the end of this month, and included here the link to test an authentication device.

Regarding the unitary patent (which may be granted when the UPC opens), the EPO’s transitional arrangements will start on Germany’s deposit of its instrument of ratification of the UPC Agreement. These will allow the applicant for a European patent to: request that a decision to grant a European patent is delayed so they do not miss the opportunity to obtain a unitary patent (and they will then have 1 month from the start date to request unitary effect); and file an early request for unitary effect, so a unitary patent will be granted immediately on the start date – this request may only be made after the applicant has received a “Rule 71(3) EPC-communication” (in which the EPO informs the applicant of the text in which it intends to grant the patent).

Myles Jelf


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