The date for the final entry into force of the Unified Patent Court Agreement (UPCA) depends on the deposit of Germany’s instrument of ratification (see News article of January 20, 2022). At present, it is generally expected that the deposit of the instrument of ratification will take place in the middle of this year. The UPCA will enter into force on the first day of the fourth month after the deposit. After the entry into force, it will be possible for applicants to obtain a European patent with unitary effect (unitary patent) by filing a corresponding request. Unlike previous European patents, the unitary patent will not split into a bundle of national property rights upon grant, but will form a unitary property right for several EU member states. Obtaining the unitary patent can be attractive especially for those applicants who want to protect their invention in large number of EU member states.
A prerequisite for obtaining the unitary effect is that the patent is granted (by publication of the mention of the patent grant in the European Patent Bulletin) as of the entry into force of the UPCA. Due to this cut-off date there is the risk that the option for obtaining a unitary patent is lost due to time constraints for European patent applications that are currently about to be granted. In order to mitigate this problem, the European Patent Office has now provided for the possibility to defer the publication of the grant to a date after the entry into force of the UPCA. This possibility will be available from the date of deposit of the instrument of ratification, provided, however, that the period for replying to the communication pursuant to Rule 71(3) EPC is still running at that time and the applicant has not yet agreed to the text intended for grant.
The above does not help those applicants for which the time limit of the communication pursuant to Rule 71(3) EPC expires before the deposit of the German instrument of ratification. These applicants could consider withholding their consent to the text intended for grant (e.g. due to undesirable amendments contained therein) in order to preserve the option of a unitary patent. Another measure could be to file a divisional application. – In view of the new momentum of the ratification process applicants are advised to take the above into consideration already as of now.