It’s official: the Unified Patent Court and Unitary Patent will become effective from 1 June 2023
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On Friday 17th February 2023, the German government deposited its instrument of ratification of the Agreement on the Unified Patent Court (UPCA) to the Council of the European Union. This was the final legal step towards the launch of the Unified Patent Court (UPC) and the European Patent with Unitary Effect (Unitary Patent). Pursuant to its Article 89, the UPCA enters into force on the first day of the fourth month after Germany has deposited its instrument of ratification, i.e. on 1 June 2023.
Germany was always envisaged to act as a “gate keeper” and would only proceed to ratification of the UPCA once the Member States agree that the preparations for the commencement of the UPC are close to completion. The fact that the German government has now done so is a clear indication that also the organisational issues (which had triggered the decision, towards the end of 2022, to further delay the launch date beyond April 1st) are now solved or close to being solved.
As another immediate consequence of this ratification, the so-called Sunrise Period can start and will do so as from 1 March 2023 (i.e. 3 months before the effective date of the UPC). At the commencement of the Sunrise Period, the "Case Management System" (“CMS”) of the UPC will open. This will include an Opt-Out Register which provides patentees who wish to pull their European patents and patent applications out of the jurisdiction of the UPC (article 83 (3) UPCA) an opportunity to do so, even before the commencement of the UPC (and avoid a central revocation action against that patent before the UPC).
Decisions to opt-out are best taken with due caution, and it is recommended that patentees and their partners verify existing contractual or legal framework for applicable constraints or governance procedures. When it is decided that a given patent should be opted-out, parties must obtain all true patent proprietors’ consent and are well-advised to reserve some time do so.