Notice from the European Patent Office dated 26 April 2023 concerning the filing of early requests for unitary effect after entry into force of the Unitary Patent system
Once the Unitary Patent system enters into force on 1 June 2023, the EPO will offer its users the option of filing their requests for unitary effect as soon as the decision to grant the European patent is issued.
1. According to Rule 6 of the Rules relating to Unitary Patent Protection (UPR), requests for unitary effect must be filed with the European Patent Office (EPO) no later than one month after publication of the mention of the grant of the European patent in the European Patent Bulletin. To give users more flexibility, the EPO will offer the option of filing requests for unitary effect at an early stage, namely once the decision to grant the European patent has been issued (EPO Form 2006A).
2. Based on the established case law of the Enlarged Board of Appeal, once a decision to grant a European patent has been handed over to the EPO's internal postal service, both the EPO and the applicant are bound by it. From this point on, the text of the patent to be granted is final and can no longer be changed or corrected (G 12/91 and G 1/10). This ensures legal certainty in that the grant decision establishes the definitive text of a patent for the purposes of any subsequent proceedings. It follows from Article 97(1) and Rule 71a(1) EPC that only the text on which the grant decision is based is decisive for the authentic content of a European patent. The grant decision is based on the patent documents submitted to the applicant for approval; once approved, these documents are referred to in the decision and so become an integral part of it. The text of the patent specification is not binding, as its function is to facilitate public access to the content of the granted patent.
3. Requests for unitary effect filed early will not be processed by the EPO before the date of the publication of the mention of the grant of the European patent in the European Patent Bulletin and will appear in the Unitary Patent Register only as of that date. They can therefore still be withdrawn so long as the EPO has not yet taken a decision, i.e. to register unitary effect or reject the request.
4. Under Rule 5(1) UPR, unitary effect must be requested by the proprietor of the European patent. If the proprietor changes because a transfer of rights is registered between the filing of an early request for unitary effect and the publication of the mention of the grant of the European patent in the European Patent Bulletin, the request may be rejected as a result, unless the new proprietor explicitly confirms it when requesting registration of the transfer.
5. In the very exceptional case that the EPO stays the grant proceedings under Rule 14 EPC after receipt of the early request for unitary effect but before the publication of the mention of grant, this publication will be postponed until the competent national court has taken a final decision on entitlement to the European patent application.