Sean Hutchinson

December 2022

We reported in our article of October 2022 that the UPC Preparatory team had published its “Implementation roadmap” for bringing the European Union’s Agreement on a Unified Patent Court (the “UPC Agreement”) into force early next year. Specifically, it was expected that Germany would ratify the UPC Agreement at the end of this year, triggering the start of the so-called “sunrise period” on 1 January 2023, with the UPC Agreement fully coming into effect on 1 April 2023.

We also mentioned in that article that the start of this new system has been delayed several times since the UPC Agreement was originally agreed upon by the participating EU Member States in 2013. Thus, it will not come as a surprise to those who have been following this process to learn that the implementation of the UPC Agreement has been delayed yet again.

In an attempt to make the Unified Patent Court (“UPC”) as user-friendly as possible, it was decided those involved in cases before the UPC should be able to access an online portal providing them with details of their cases. This online portal is to be known as the UPC’s Case Management System (“CMS”).

Understandably, very strong authentication measures have been introduced to keep the UPC’s CMS secure. Therefore, users attempting to login to the CMS will be required to connect a physical authentication device to their computer before the system will permit them to view details of their case(s).

Whilst many users will undoubtedly support these measures to keep the CMS secure, much concern has been expressed about the availability of the physical authentication devices required to access the CMS. Specifically, despite the UPC having published a list of companies allegedly able to provide the required authentication devices, many users have, in practice, been unable to obtain such a device without great difficulty, if at all.

Fortunately, those working to implement the UPC Agreement are aware of the above difficulties many wishing to use the new system are having. Therefore, the President of the UPC Court of Appeal and the Acting Chairman of the Administrative Committee of the UPC issued a joint statement in a press release on the UPC website on 5 December 2022 confirming a decision has been taken to delay the start of the sunrise period by two months. As explained in that press release, it is hoped this short delay will give soon-to-be users of the CMS time to acquire the physical authentication devices needed to let them access details of their case(s) online before the new system comes into effect.

Accordingly, the sunrise period is now scheduled to start on 1 March 2023, rather than 1 January 2023, with the UPC Agreement fully entering into force on 1 June 2023, instead of 1 April 2023.

It should be noted that, despite this delay, and as explained on the EPO website, the EPO will still accept the filing of a request for delayed grant of a European patent and the filing of a request for unitary effect from 1 January 2023; this has not also been delayed. Accordingly, the EPO has now published final versions of the relevant forms for filing these requests on its website, as well.

The UPC start date has been delayed several times before, and many will be wondering whether the UPC will ever actually open for business. However, unlike many delays before it, this recent two-month delay appears to have been caused simply by some administrative difficulties that need to be ironed out before the new system can start. Therefore, we at Schlich remain optimistic that 2023 is still likely to mark the start of the EU’s new unitary patent system, albeit slightly later than planned.

If you are interested in knowing more about the changes coming to the European patent system in view of the UPC Agreement, then Schlich would be happy to discuss this further with you to help you make the right decisions for your European patent portfolio.