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EPO Confirms Transitional Measures for Unitary Patent will be Available from 1 January 2023

By Matthew Howell, Partner

Following the announcement earlier this week that the expected start date of the Unified Patent Court (UPC) has been pushed back to 1 June 2023, the European Patent Office (EPO) has confirmed that its transitional measures in relation to the Unitary Patent (UP) will be available from 1 January 2023 as originally planned.

Delaying grant to maintain the option of Unitary Patent protection

The first of the transitional measures allows an applicant for a European patent which is in order for grant to request delayed grant of the application until the Unitary Patent is available as a validation option.

Thus, with effect from 1 January 2023, it will be possible to request delayed grant for any application for which a communication under Rule 71(3) EPC (informing the applicant of the text intended for grant and requesting the applicant’s approval of that text) has been issued, as long the applicant has not yet approved the text. In response to such a request the EPO will delay the grant of the European patent until the start of the UPC/UP system, to ensure that the option to validate the granted European Patent as a Unitary Patent is open to the applicant.

Early request for unitary effect to secure Unitary Patent protection as early as possible

The second transitional measure allows an applicant to file a request for unitary effect before the start date of the UPC/UP system, so that a European patent (when granted), will be validated as a Unitary Patent as soon as the UPC/UP system comes into effect.

Thus, with effect from 1 January 2023, it will be possible to request unitary effect early for any pending European patent application for which a communication under Rule 71(3) EPC has been issued.  Provided that the request fulfils the EPO’s formal requirements, the EPO will register the European patent (when granted) as a Unitary Patent once the UPC/UP system has come into effect, and will notify the applicant of the date of this registration.

Further information on the UP/UPC system is available here.

This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic then please contact or your usual HLK advisor.

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