Category : Unitary Patent

Opt out, stay in: how do we proceed in the case of co-ownership?

With the entry into force of the unitary patent, the unified patent court (UPC) and the associated transitional provisions, it will be possible to escape the competence of the UPC for European published applications and patents without unitary effect (OPT OUT), by the filing of a declaration made by the effective Applicant/Patentee, before the start of proceedings.

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What is the “sunrise period”?

The deposit of the Unified Patent Court Agreement ratification instrument by Germany will trigger the Sunrise period and the entry into force of the UPCA (3 months after the start of the Sunrise period).

In anticipation of the opening of the Unified Patent Court (UPC) that is currently planned for  April 1st 2023, it will be possible to opt out existing patents and patent application from the jurisdiction of the UPC.

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UPC – Protective Letters

Known in some national European jurisdictions, unknown in others, the UPC implements a defensive measure against provisional measures that might be requested by a patentee: the protective letter.

Provisional measures that may be requested by a patentee against an alleged infringer include: prohibition of the continuation of the alleged infringement (A62(1)UPCA) and seizure or delivery of the products suspected of infringing a patent so as to prevent their entry into, or movement, within the channels of commerce (A62(3)UPCA).

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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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