In October 2022, the UPC preparatory team published an initial roadmap towards a projected date of 1 April 2023 for the UPC to open its doors - with the “sunrise” period projected to start on 1 January 2023. Had this timeline been adhered to, Unitary Patents would have become available for European patents that were granted from 1 April 2023. To enable applicants to obtain Unitary Patents - even in situations where the European patent application would have granted before this date - the EPO has decided to introduce transitional provisions to accept requests for delay of patent grant, and early requests for Unitary Patent protection, from 1 January 2023 to 1 April 2023.
Yesterday, the UPC announced a two month delay to the start of the sunrise period to 1 March 2023. This means the new court is now projected to open its doors on 1 June 2023. We have learned today that the EPO will not change their previously announced transitional provisions, even in light of this delay. This means that the EPO will continue to accept requests for delay of grant of a European patent - for which a communication under Rule 71(3) EPC has already been issued - as well as an early request for unitary protection from 1 January 2023, despite the fact that the “sunrise period” will not have begun. This is a positive development for patent applicants. Whilst it would have been possible for applicants to unilaterally delay their response to the communication under Rule 71(3) EPC, doing so is more costly than an official request for delay of grant. These extra costs now no longer have to be incurred for European patents for which a response to the communication under Rule 71(3) EPC is due between 1 January 2023 and 1 March 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
