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23 March 2022
The Unitary Patent (UP) system is expected to enter into force, and the Unified Patent Court (UPC) to become operational in late 2022. The patent holders will be able to request unitary effect at the EPO only for European patents granted on or after this date.
To enable applicants of pending patent applications that are close to grant to benefit from the unitary effect for their granted patents and to facilitate the process of introduction of the Unitary Patent system, the European Patent Office (EPO) will implement two temporary measures during the 3 to 4-month period after Germany deposits its instrument of ratification of the Unified Patent Court Agreement (UPCA) and before the UP systems commences.
The first measure will allow applicants who have received an intention to grant communication (Rule 71(3) EPC) and have not yet approved of the text intended for grant, to request a delay in issuing the decision to grant their EP patent. The EPO will provide a dedicated request form for this purpose. The grant will then ensue on or immediately after the date of entry into force of the UPCA agreement.
The second measure will allow applicants who have received an intention to grant communication (Rule 71(3) EPC) to file early requests for unitary effect. The EPO will then register the unitary effect once the Unitary Patent system has started. The EPO will provide a dedicated request form for this purpose.
Importantly, these measures will only be available once Germany deposits its instrument of ratification of the UPCA, which will, at the moment of writing this post (March 2022) still take a number of months. Consequently, applicants who have in recent months received an intention to grant communication (Rule 71(3) EPC) or who will receive one in the near future, and who nonetheless wish to benefit from the UP system, need to consider other procedural options to delay grant.
At De Clercq & Partners we will help you navigate these changes in the European patent system. Please do not hesitate to contact us if you have any questions or remarks on this topic.