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Legal Alert: Unitary Patent and UPC Start Date Target Is Now 1 April 2023

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On October 6, the UPC announced a target start date of 1 April 2023. The Unitary Patent regulations specify that they would be effective on the same date as the UPC start date. The UPC also published its implementation roadmap. The roadmap indicates the current UPC status and steps to be completed before the start date.

The current target start date is not certain. One well-connected person, speaking off the record, has said that his best guess is 1 May. The start date will become certain when Germany deposits its ratification of the UPC Agreement, because that agreement specifies that the UPC will open on the first day of the fourth month after such deposit.

There will be a sunrise period of three months before the start date for both the UPC and the Unitary Patent. Therefore, if Germany deposits during December 2022, the sunrise periods for the Unitary Patent and UPC will begin 1 January 2023 and the start date will be 1 April 2023.

During that period, owners of conventional European patents may file requests at the UPC to opt-out of the UPC (see here), and European patent applicants can request that the EPO postpone grant in order to validate an application as a Unitary Patent after the start date.

The UPC implementation roadmap indicates that most judges have been selected and that their names will be announced soon. A few more judges will be appointed, as well as a reserve list of persons to become judges if needed.

Some of the start date delay appears to relate to the implementation of the Case Management System (CMS), which will permit electronic lodging of papers. The CMS must not only accommodate a moderate flow of papers in actual cases filed on or after the start date, but also a potentially large number of opt-out requests during the sunrise period.

In August, the UPC announced that the CMS login process will be based on a strong authentication scheme. For this purpose, an electronic IDentification certificate and physical secure devices (smart card or token) will be used, instead of an account number plus password system. On 10 October, the UPC announced a new link for users to test their authentication device.

Another potential complication for persons wishing to opt-out of the UPC is that the CMS system is set up for individual, online opt-out requests. The UPC itself will not offer a way to lodge opt-outs of multiple patents in one step. Rather, it is providing an Application Programming Interface (API) to permit users to communicate securely with the CMS, including communication of multiple opt-out requests. The user or a service provider will have to provide the necessary software for the user side.

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.