Initially announced for April 1, 2023 the Unified Patent Court (UPC) should finally start on June 1, 2023.
As a result, the famous 3-month period, known as the “Sunrise period” and which should allow applicants to prepare for the implementation of the UPC, will begin on March 1, 2023 instead of January 1, 2023.
As a reminder, the UPC will of course have exclusive jurisdiction with regard to disputes relating to unitary patents1which may be issued by the European Patent Office from June 1, 2023.
However, without any action on your part during the “sunrise period”, it will also have jurisdiction from the outset with regard to disputes relating to your European patents which have not benefited from the unitary effect2. Thus, the various actions concerning your European patents, in particular nullity actions, may be brought both before the UPC and before the national courts. In the event of a dispute before the UPC, the risk is that your European patent be cancelled in all the countries covered by the agreement on a unified patent jurisdiction3.
In order to avoid this situation, you will have the possibility of requesting an “opt-out”4 from the UPC from the start of the “sunrise period” and thus returning their exclusive jurisdiction to the national courts. Such a request has the advantage of being reversible, since you will always have the possibility of requesting an “opt-in” to give the UPC exclusive jurisdiction for disputes related to your European patents.
If, on the contrary, applicants wish to centralize the disputes concerning European applications and patents with the UPC, an “opt-in” request4 can also be filed from the start of the “sunrise period” so that the UPC has exclusive jurisdiction for disputes related to these European applications and patents.
Please note however that unlike the “opt-in”, this request is irreversible and actions before national courts are then no longer allowed.
The Brandon-IP team is at your disposal to determine with you the relevance of making an “opt-in” or “opt-out” request for all or part of your European applications and patents.
1 or European patent with unitary effect
2 classically validated in certain member countries of the European Patent Convention
3 17 countries as of June 1, 2022
4 “opt-out”: option to leave / “opt-in”: option to return