Official Journal January 2022

Citation: A6
Online publication date: 31.1.2022

EUROPEAN PATENT OFFICE


Information from the EPO

Notice from the European Patent Office dated 22 December 2021 concerning the forthcoming introduction of the Unitary Patent and the possibility to file early requests for unitary effect

Regulations (EU) No 1257/2012 and (EU) No 1260/2012[ 1 ] setting up the Unitary Patent will apply from the date of entry into force of the Agreement on a Unified Patent Court (UPCA).[ 2 ]

In order to facilitate the introduction of the Unitary Patent system, the European Patent Office (EPO) will accept requests for unitary effect[ 3 ] filed prior to the date of application of the above-mentioned Regulations (hereinafter referred to as "early requests for unitary effect"). Such early requests for unitary effect will be allowed to be filed as of the date of deposit of the Federal Republic of Germany's instrument of ratification of the UPCA. This date lies between three and four months before the entry into force of the UPCA[ 4 ] and will be communicated on the EPO's website. Early requests for unitary effect may only be filed for European patent applications in respect of which a communication under Rule 71(3) EPC has been despatched.

If the requirements for the registration of unitary effect as provided for in the Rules relating to Unitary Patent Protection are met, the EPO will register unitary effect once the Unitary Patent system has started and communicate the date of this registration to the requester. Otherwise, it will invite the requester to correct the deficiencies if applicable or reject the request for unitary effect.[ 5 ] It is to be noted that requesters will receive a communication concerning the result of their request for unitary effect at the earliest a few days after the publication of the mention of the grant of the relevant European patent in the European Patent Bulletin following the start of the Unitary Patent system. The EPO will however inform requesters about formal deficiencies already before the entry into force of the Rules relating to Unitary Patent Protection, giving them the possibility to make corrections in due time.

Where an early request for unitary effect is filed before Germany deposits its instrument of ratification of the UPCA and/or if a Rule 71(3) EPC-communication has not been despatched, it cannot be treated as a request for unitary effect. The applicant will be informed about this and will be able to resubmit the request once the conditions are met.

It is important to note that unitary effect may only be registered by the EPO for any European patent granted on or after the date of application of Regulation (EU) No 1257/2012.[ 6 ] It should also be noted that the filing of an early request for unitary effect does not imply that the EPO will delay issuing the decision to grant a European patent, which can only occur upon explicit request. For further details concerning the possibility of requesting a delay in issuing the decision to grant a European patent in response to a communication under Rule 71(3) EPC, please see the Decision of the President of the European Patent Office dated 22 December 2021 as well as the corresponding EPO Notice.[ 7 ]

The possibility of filing early requests for unitary effect is only available until the date of application of Regulations (EU) No 1257/2012 and (EU) No 1260/2012. Detailed information as to the filing of requests for unitary effect on or after that date can be found in the Unitary Patent Guide available on the EPO website.

Please note that a request for unitary effect should preferably be filed online. Form UP 7000 (request for unitary effect) will be made available in both Online Filing (eOLF) and Online Filing 2.0. When using web-form filing, it is highly recommended to use Form 7000 which will be provided on the EPO's website. The request for unitary effect can also be filed in person, by postal services or by fax in which cases it is also strongly recommended to use Form 7000, reading the explanatory notes carefully before completing it.

 

 

[ 1 ] See OJ EPO 2013, 111 and 132.

[ 2 ] See OJ EPO 2013, 287.

[ 3 ] See Rules 5 to 7 Rules relating to Unitary Patent Protection.

[ 4 ] The UPCA will enter into force on the first day of the fourth month after the deposit of the instrument of ratification of the Federal Republic of Germany (see Article 89(1) UPCA).

[ 5 ] Please see the Unitary Patent Guide, B-IV., for details as to the examination of the request for unitary effect by the EPO.

[ 6 ] See Article 18(6) Regulation (EU) No 1257/2012. Pursuant to Article 97(3) EPC, the decision to grant a European patent shall take effect on the date on which the mention of the grant is published in the European Patent Bulletin.

[ 7 ] Decision of the President of the European Patent Office dated 22 December 2021 concerning the forthcoming introduction of the Unitary Patent and the possibility of requesting a delay in issuing the decision to grant a European patent in response to a communication under Rule 71(3) EPC, OJ EPO 2022, A4; Notice of the European Patent Office dated 22 December 2021 concerning the forthcoming introduction of the Unitary Patent and the possibility of requesting a delay in issuing the decision to grant a European patent in response to a communication under Rule 71(3) EPC, OJ EPO 2022, A5.

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