The so-called "sunrise period" will start on the first day of the month following the deposit of Germany’s instrument of ratification of the UPCA; the sunrise period is currently expected to start on 1 March 2023.
As soon as the sunrise period starts, the aforementioned opt-out can be declared.
This gives patent proprietors the possibility to opt-out from the exclusive jurisdiction of the UPC before any infringement or nullity action could be brought before that court.
Furthermore, since 1 January 2023, the European Patent Office implements two transitional measures for applicants interested in obtaining a patent with unitary effect; these are applicable for European patent applications for which a communication under Rule 71(3) EPC has been dispatched after 1 January 2023 and will be available until the date of entry into force of the UPCA.
Early request for unitary effect
This first transitional measure enables applicants to file early requests for unitary effect already before the start of the unitary patent system. This will allow the EPO to register the unitary effect immediately at the start of the system, provided all corresponding requirements are met. The EPO will register the unitary effect once the unitary patent system has started and communicate the date of this registration to the requester.
Request for a delay in issuing the grant decision
This second transitional measure provides the applicant with the possibility to request a delay in issuing the decision to grant a European patent after dispatch of a communication under Rule 71(3) EPC by the EPO and before approving the text intended for grant. This will makes the European patent that would otherwise have been granted before the start of the new system eligible for unitary patent effect, and will avoid that applicants miss opportunities to obtain a unitary patent in the transitional period.
That is, at an applicant’s request, the EPO will delay issuing its decision to grant a European patent such that the mention of the grant is published in the European Patent Bulletin only on or immediately after the start date of the unitary patent system. Such a request thus makes a European patent eligible for unitary patent effect.
Thus, if you are interested in obtaining a unitary patent for pending European patent applications, make use of the possibility to delay the grant until the start of the unitary patent system.