After some uncertainty over recent years, it seems that the UPC Agreement (UPCA) will finally come into force in late 2022/early 2023.  Once in force, Unitary Patents (UP) can be granted by the EPO.

A UP will provide a single patent right covering all Contracting Member States, i.e., those having ratified the UPC Agreement. This new system will not change the pre-grant life of a European patent application and relates to post-grant changes only.

To support users in early uptake of the UP, the EPO has introduced transitional measures available ahead of the start of the UP system and applicable to patent applications that have reached the final stage of the pre-grant procedure. i.e., for applications for which an Official Communication under Rule 71(3) EPC has issued. These measures are available as of the date Germany deposits its instrument of ratification of the UPCA. We will publish this date as soon as it has been communicated.

The first measure allows an applicant to file an early request for unitary effect.

The second measure allows the applicant to request a delay in issuing the decision to grant a European patent after dispatch of a communication under Rule 71(3) EPC and before approving the text intended for grant.

Unitary protection only applies to European Patents granted on or after the date on which UP system comes into force. As filing an early request for unitary effect will not delay grant, if the patent is due to be grated before the UP system comes into force, a request to delay grant should also be filed.

With the UP system fast approaching, Applicants should start to consider their options.

If an application is nearing the final stage of the pre-grant procedure now, Applicants may wish to consider their options to delay this phase so that they can avail of the benefits of a UP.

The EPO information on the unitary patent transitional measures can be found here and this also provides some helpful examples.

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