The so-called "sunrise period" will start on the first day of the month following the deposit of Germany’s instrument of ratification of the UPCA; the sunrise period is currently expeced to start on 1 March 2023.
As soon as the sunrise period starts, the aforementioned opt-out can be declared.
This gives patent proprietors the possibility to opt-out from the exclusive jurisdiction of the UPC before any infringement or nullity action could be brought before that court.
Furthermore, already from 1 January 2023, the Europan Patent Office will implement two tran-sitional measures for applicants interested in obtaining a patent with unitary effect; these will be applicable for European patent applications for which a communication under Rule 71(3) EPC has been dispatched after 1 Januay 2023 and will be available until the date of entry into force of the UPCA.
Early request for unitary effect
This first transitional measure will enable applicants to file early requests for unitary effect already before the start of the unitary patent system. This will allow the EPO to register the unitary effect immediately at the start of the system, provided all corresponding requirements are met. The EPO will register the unitary effect once the unitary patent system has started and communicate the date of this registration to the requester.
Request for a delay in issuing the grant decision
This second transitional measure will provide the applicant with the possibility to request a delay in issuing the decision to grant a European patent after dispatch of a communication under Rule 71(3) EPC by the EPO and before approving the text intended for grant. This will make the European patent that would otherwise have been granted before the start of the new system eligible for unitary patent effect, and will avoid that applicants miss opportunities to obtain a unitary patent in the transitional period.
That is, at an applicant’s request, the EPO will delay issuing its decision to grant a European patent such that the mention of the grant is published in the European Patent Bulletin only on or immediately after the start date of the unitary patent system. Such a request thus makes a European patent eligible for unitary patent effect.
If you are interested in obtaining a unitary patent for pending European patent applications, take precautions to delay the grant until the start of the unitary patent system.
If the communication pursuant to Rule 71(3) EPC has recently been issued, it may be advisable to request minor amendments (e.g. correction of typographic errors) which will cause issuance of a further communication pursuant to Rule 71(3) EPC, thus allowing for another four-months’ period. Further, you may wish to wait until the end of the available period of four months for payment of the fee for grant and publishing and for filing a translation of the claims. If the deposit of Germany's instrument of ratification of the UPCA should occur within this 4 months period, which would initiate the “sunrise period”, the transitional measures described above can be used for the aforementioned application.