The sunrise period of the Unified Patent Court (UPC) starts tomorrow (1 March), allowing patents to be opted out from the Court’s exclusive jurisdiction and representatives to register before the Court opens on 1 June 2023, and the UPC has published Practical information on the upcoming launch of the Sunrise period. This is not only a useful source of information previously published (such as how to create an account to access the CMS and the link to the CMS) but also states the following:
- The start time is 9.00 CET.
- Users planning to file “massive” opt-outs are strongly advised not to wait until the last couple of weeks of the sunrise period and to inform the UPC, as far as possible, of the forecasted date of filing, via “Planning Massive Opt-Out” in the contact form.
An opt-out can be requested for a European patent, a published European patent application, and an SPC for a product protected by a European patent. Representatives may still register and opt-outs may still be filed on or after 1 June, but an opt-out cannot be made if an action has already been brought before the UPC in respect of that patent, patent application or SPC.
It should be noted that all proprietors must be included in the opt-out, and Rule 5(1)(b) states: “The Application to opt out shall be made in respect of all of the states for which the European patent has been granted or which have been designated in the application.” Therefore, proprietors of national parts of a European patent (or application) in countries that have not ratified or even signed the UPC Agreement will need to be included in the opt-out. Also, it is not what is on the register (neither EPO nor national registers) which determines who is entitled to opt out, but the “real” proprietor(s).
The sunrise practice CERUS environment remains open until 31 March for users who still wish to prepare for and test using the CMS, so users of the system will need to ensure they are indeed accessing the main system when intending to make actual filings.