The sun rises on a new era of patent law in Europe
The UPC will open its doors on 1st June 2023

The Unified Patent Court will become fully operational on 1st June 2023 following the German government today, 17th February 2023, completing ratification of the underlying agreement. Today’s news confirms that the “sunrise period” for UPC opt out requests will run from 1st March 2023 to 31st May 2023. No further delays are possible, so all patentees need to complete their preparations for this new system ahead of 31st May 2023.

Opting European patents out of the jurisdiction of this new court

The UPC will be able to hear infringement and revocation actions for all patents already granted by the EPO, unless an opt out request has been filed before a UPC action has commenced. For a smooth transition into this new system, a sunrise period for filing opt out requests should start on 1st March 2023 and will run until 31st May 2023. During these few months before the court kicks off, patentees will be allowed to file opt out requests safe in the knowledge that UPC actions cannot be filed by third parties. As a result, this sunrise period is the only risk-free phase when existing European patents and published applications can be removed from the UPC’s jurisdiction. Opt out requests filed on and after 1st June 2023 will not be effective if a UPC action has already been filed.

This is the time to implement your opt out strategy for your own patent portfolio and to ensure that any patents you have in-licensed have an opt out plan agreed with the patentee(s). If you would like to discuss strategic considerations around the UPC, please email your usual Carpmaels contact who will be able to advise alongside our team of European litigators.

Other steps to take before 1st June 2023

In addition to finalising your opt out plans and filing opt out requests, there are other steps to take before the UPC opens for business on 1st June 2023. For example, we understand that it will be possible to monitor opt out requests during the sunrise period, including those for third party patents, allowing you to see how competitors approach the new system and potentially informing your litigation planning. Monitoring opt outs may trigger conversations with licensors or identify opportunities to centrally revoke patents of concern. The UPC also provides an attractive forum for pursing infringers because the patentee can enforce a patent across multiple states in a single action. For pending applications at the EPO, you may wish to consider filing requests for Unitary Patents on grant, as the EPO already allows the filing of these requests.

Support from the Carpmaels team

Our mixed teams of European patent attorneys and European litigators can advise you on how best to use this new court, as over 50 of our litigators and patent attorneys will have full rights as UPC representatives. Feel free to reach out to your usual contact for any UPC related queries. Our team is here to answer any questions you may have on substantive UPC issues, as well as on practicalities surrounding opt out requests and the Unitary Patent. Our UPC Landscape tool shows the states involved and our UPC Guide provides further information about the features of the new court.