The UPC opt-out sunrise period ends on 31 May 2023 and on 1 June 2023 the Unified Patent Court (UPC) will finally open its doors. While it will still be possible to opt European patents out of the UPC jurisdiction for the next few years, non-opted out European patents are vulnerable to attack from 1 June. As expected, the number of opt-out applications that are being filed has significantly increased over the last few weeks and is likely to further ramp up as we approach the end of the sunrise period. Having successfully filed in excess of 10,000 opt-out applications ourselves, we have noticed an increasing number of server timeout errors at certain times of day. It seems fair to say that the UPC CMS servers are under considerable strain and one wonders if opt-out applications filed during the last days of the sunrise period stand a realistic chance of being recorded on the opt-out register (which marks the point at which the opt-out becomes effective) before the UPC opens its doors next week.
Yesterday, 25 May 2023, the UPC announced that, in situations in which the court has established that the CMS has ceased to function, opt-out applications will be accepted in hard copy on a USB stick and to be deposited at the UPC Court of Appeal in Luxembourg during a daily five hour window. It is important to note that the scheduled downtime of the server on 31 May 2023 will not qualify as a period in which the CMS has ceased to function. Clearly, there is concern on the part of the UPC that the volume of opt-outs that will be received may cause failure of the IT infrastructure put in place. We firmly recommend that that any residual opt-outs are filed as soon as possible. It seems risky to wait for next week and, whilst our own API is configured to repeat submissions that have suffered a server time out error until the submission is accepted, there is little that can be done electronically if the UPC servers fail. Our Luxembourg office will be able to submit opt-out requests in hard copy but not only will submissions of this nature be more costly than electronic submissions but one also wonders how quickly any such submissions will be published on the opt-out register (thereby becoming effective) following a period in which the CMS has ceased to function.
To learn more about the UPC and the steps you need to take, please visit our dedicated hub here (or email upc@marks-clerk.com to connect with one of our experts. We have also summarised the current options available under the Unitary Patent system in the article linked below.
The new court is an international court common to all UPC participating states, and will have jurisdiction over all disputes concerning Unitary Patents. Such disputes will not be handled by national courts.
The new court will also have jurisdiction over disputes concerning ‘traditional' non-unitary European patents that are validated in UPC participating states, as well as any disputes concerning pending European patent applications, unless the application or patent has been ‘opted out' of the competence of the UPC.
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