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Timetable for decisions between now and when the UPCA comes into force

Now to 1 January 2023

Holders of European Patents validated in any of the UPC participating countries need to consider whether they wish to opt out any of their European Patents from the jurisdiction of the Unified Patent Court.

Applicants for European Patent applications may wish to consider employing tactics to delay grant until after the Unified Patent Court Agreement (UPCA) has come into force, so as to be able to validate the resulting European Patent as a Unitary Patent.

German deposit of UPCA ratification (expected December 2022) to when the UPCA comes into force (expected 1 April 2023)

The period between German deposit of UPCA ratification and the coming into force of the UPCA is referred to as the “sunrise period” and lasts at least three months. If the start date of 1 April 2023 is to be achieved, the sunrise period will start by at least 1 January 2023.

During the sunrise period European Patents may be opted out of the jurisdiction of the UPC. If an opt out is made in this period it is guaranteed that a third party cannot start a central revocation action at the UPC on the first day the UPC is operational.

1 January 2023 to when the UPCA comes into force (expected 1 April 2023)

A second, parallel period will begin on 1 January 2023 and last for three months. During this period it is possible to request an official delay in the issuance of a European Patent until entry into force of the UPCA so that the application can lead to Unitary Patent protection.

Originally this period matched the timing of the sunrise period, but the EPO has now decided that the option to request such a delay will definitely become available from 1 January 2023, regardless of whether the German deposit of UPCA ratification takes place before that date or after it.

After UPCA comes into force (expected 1 April 2023)

Applicants for European Patents will have the new alternative option of selecting a Unitary Patent covering 17 UPC participating countries on grant instead of validating nationally in those participating countries. The existing non-unitary national validations of a European Patent will continue to be available both for non-participating countries and for participating countries where a Unitary Patent is not selected. Unitary Patent protection will simply be an alternative option in those countries which are participating. If national validation in a UPC participating country is chosen, then a decision will need to be made as to whether to opt out of the jurisdiction of the UPC.

After the UPCA comes into force, patentees will have the option of enforcing their European Patents validated in UPC participating countries through the UPC or through national courts. Third parties will be able to seek revocation of non-opted out European Patents in UPC participating states centrally at the UPC. Litigation of Unitary Patents will commence at the UPC.