Dawn Forecast – The Sunrise Period Is Coming

Since the publication of this article, the UPC authorities have updated their roadmap. The dates specified below have changed to those in this article.

The authorities of the Unified Patent Court (UPC) have set a planned start date for the full entry into force of the UPC and have established a roadmap for how this will be achieved. The full entry into force of the UPC will also bring the Unitary Patent (UP) system into force at the same time. These events are intended to take place on 1 April 2023. At the time of publication, this date is still some way off. However, a major event is a required precursor to the full entry into force of the UPC and UP systems. This is the Sunrise Period, and the start of the Sunrise Period is rapidly approaching. With all live European patents and European patent applications affected, this is something needing attention.

The effective term of the Sunrise Period is intended to be 1 January 2023 to 1 April 2023 (strictly speaking, up to and including 31 March 2023). The Sunrise Period was put in place to allow completion of the final preparations for the UPC to fully enter into force after the last required ratification of the Agreement on a Unified Patent Court (UPCA) is deposited. This ratification is the German ratification, which the UPC authorities’ roadmap anticipates can be deposited in the final week before Christmas 2022.

The Sunrise Period is relevant to all live European patents and European patent applications, since those are affected by the introduction of the UPC and UP systems. This is because during the effective term of the Sunrise Period, even though no UPC litigation can be started, importantly, it is possible to start filing opt-out requests for European patents and patent applications from the default jurisdiction the UPC will have over all live European patents and European patent applications. The UP transitional provisions put in place by the European Patent Office (EPO) also become available during this time.

Commercial decisions around opting out will take time to work through.  Additionally, the opt-out procedure will potentially take even more time because of the requirements involved.  The EPO UP transitional provisions also provide a window to take greater advantage of the UP system from as soon as it fully enters into force.

As well as allowing the final preparations to be made for the UPC to open its doors and litigation starts , the Sunrise Period will be much needed by rights owners to get their affairs in order. For those considering opting out rights from the UPC jurisdiction and those wanting to make use of the UP system, it is strongly recommended that they use the time in the run-up to the Sunrise Period to get everything arranged. This will allow the Sunrise Period to be used effectively and the necessary steps to be completed before the UPC and UP systems fully enter into force, minimising the chances of not having completed everything before UPC litigation can be launched against rights.

If you have any questions on the matters addressed in this article, or on any other UPC and Unitary Patent matter, please email us at gje@gje.com or contact your usual GJE attorney.