EPO Guidelines Updated in View of Unitary Patent and UPC

The latest version of the Guidelines for Examination at the European Patent Office came into force on 1 March 2023. For the first time, the Guidelines directly address the changes in place in view of the introduction of the Unitary Patent (UP) and the opening of the Unified Patent Court (UPC). The content of the new sections on the UP and UPC are much as expected. The UPC is set to open on 1 June 2023, and unitary patents will be available for EP cases granted on or after that date.

Section C of the Guidelines has been updated to include comments on the top-up search for national prior rights conducted at allowance (C-IV, 7.2) and the interim measures in place during the sunrise period for unitary patents, namely the option to delay grant and to file an early request for unitary effect (both discussed at C-V, 2). These sections confirm the existing practice regarding the UP and grant procedure for pending European applications.

In relation to the UPC, E–VIII, 5 regarding acceleration of opposition proceedings has been updated to refer specifically to the possibility of requesting accelerated processing of an opposition in view of a pending action for the same patent before the UPC. It is not yet certain exactly how the UPC and EPO will deal with co-pending opposition and UPC proceedings. Nevertheless, it is helpful to have confirmation that acceleration will be considered by the EPO in the context of UPC proceedings.

Please contact your usual J A Kemp advisor if you have any questions about the UP or UPC.