Opt-out : actions to be undertaken

As you may know, alongside with the set-up of a patent with unitary effect, a Unified Patent Court (UPC) is being established and will be effective at the end of a “sunrise” period (expected in spring 2023).

By default, this UPC court will also have jurisdiction over all your European patent applications and granted European patents (in force or expired since less than 5 years) and deriving SPCs.

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Opt-out of SPCs

Operation of the Unified Patent Court (UPC) is currently expected for 1st April 2023 (https://www.unified-patent-court.org/news/latest-state-play-view-launch-unified-patent-court), thus launching the sunrise period as soon as 1st January 2023.

During this sunrise period, it will be possible to opt-out European (EP) titles from the competence of the UPC. Opt-out will be possible for published EP patent applications, granted EP patents (without unitary effect) and Supplementary Protection Certificates (SPCs) issued for a product protected by a EP patent (A.83 UPCA).

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Publication of final judges list

The Unified Patent Court recently confirmed the appointment of the 85 judges (34 legally qualified judges and 51 technically qualified judges) for the entry into force of the UPC Agreement. Gérard Myon has been appointed technical qualified judge in Physics.

Gérard Myon – Appointed technical judge

Official announcement and full list available here

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UPC and the Bolar exemption

The so-called ‘Bolar exemption’ finds legal basis in EU Directive 2004/27/EC modifying Directive 2001/83/EC on the Community code relating to medicinal products for human use. Article 10(6) of EU Directive 2001/83/EC states that:

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Double Protection between national Patent and European Patent with or without the unitary effect

The European Patent with unitary effect (“Unitary Patent”) will be introduced soon. The final stage of the preparatory work will be accomplished by the end of this summer and the final missing ratification will then be deposited by Germany.

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