Firstly, European patent applicants will be able to request a delay of the grant of a European patent. If the request is approved, publication of the grant will take place only on or after the date of the UPC Agreement’s (UPCA) entry into force so that registration of unitary effect for the European patent is possible. Secondly, applicants will be able to file an early request for unitary effect. Both requests may only be filed for European patent applications in respect of which the text intended for grant according to Rule 71(3) EPC has already been issued. The request for delay of the grant additionally requires that the applicant has not yet approved the text intended for grant.
Originally, these two transitional measures were intended to be available from the date on which Germany deposits its instrument of ratification of the UPCA, triggering the start of the sunrise period and the entry into force of the UPCA.
However, in view of the UPC’s recent publication of its implementation roadmap (see also C&F Blog of October 19, 2022), the EPO has decided to set the start date of the transitional measures at January 1, 2023, irrespective of Germany’s ratification. The transitional measures will end with the entry into force of the UPCA, which is currently planned for April 1, 2023, according to the implementation roadmap.
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