On 14 November 2022, the EPO provisionally published a decision of the president of the EPO concerning the forthcoming introduction of the Unitary Patent and the possibility of requesting a delay in issuing the decision to grant a European patent in response to a communication under Rule 71(3) EPC. The decision will become official in the next issue of the Official Journal of the European Patent Office, and is expected to go into effect on 1 January 2023. The decision was also accompanied by a notice indicating that applicants will also be able to file early requests for Unitary effect starting on 1 January 2023. The decision and notice outline the EPO’s efforts to encourage early adoption of the upcoming Unitary Patent scheme.
Why has the EPO made these announcements?
Although the EU Regulations Nos. 1257/2012 and 1260/2012 setting up the Unitary Patent will apply from the date of entry into force of the UPC Agreement (currently expected for 1 April 2023), the EPO has committed to facilitating the introduction of the Unitary Patent system by accepting requests for Unitary effect prior to this date of entry into force.
However, the EPO may only register the Unitary effect for a European patent granted on or after this date of entry into force. Thus, the EPO has committed to allowing a Unitary effect to be sought, even though it is not yet fully available.
Additionally, a request for Unitary effect must be made within one month from mention of publication of the grant of the European patent in the European Patent Bulletin, and a normal request for Unitary effect would not be possible until the UPC Agreement comes into force.
These time constraints pose major obstacles to many potential early adopters of the Unitary Patent scheme because they exclude patents that are granted too early and force owners of patents granted less than one month before the entry into force of the UPC Agreement to scramble to request Unitary effect.