Due to increased certainty with respect to the Unified patent Court (UPC), the EPO has confirmed that its transitional measures relating to Unitary patents will be available from 1 January 2023. From this date, patent applicants may file early requests for Unitary Patents and requests for a delay in issuing the decision to grant a European patent. The transitional measures will continue until the UPC starts, currently predicted to be 1 April 2023, from which time unitary effect for patent applications granted by the EPO (i.e. Unitary Patents) will be available.
Additionally, in order assist patent applicants in the new era of the UPC, the EPO has put together a booklet on national provisions relating to Unitary Patents in the UPC participating states. This includes for example information on whether double patenting (i.e. a Unitary patent and a national patent) is available in individual UPC participating states.
Finally, the EPO has also confirmed it will conduct searches for intermediate national prior rights (national patent or patent application publications with an earlier filing date, but published after the entitled date of a European patent application) which may affect validity of patents granted by the EPO under the UPC system. While national prior rights are not intermediate prior art in oppositions at the EPO, they can be used in revocation actions before the UPC, and hence citable against Unitary patents as well as ‘classical’ European patents granted by the EPO under the UPC jurisdiction.
The EPO announcement on start date for the Unitary Patent transitional measures can be found here.
Further explanation of the transitional measures can be found here.
The EPO booklet on national measures can be found here.
The EPO announcement on national prior right top up searching can be found here.
