Start date for UPC postponed to 1 June 2023 and sunrise period for opt-out to 1 March 2023

The UPC website has announced today that the start date for the sunrise period (in which European patents can be opted out of the UPC's jurisdiction in advance of the UPC starting to accept cases) will be delayed until 1 March 2023 to allow users to prepare themselves for the strong authentication required to access the UPC's case management system (CMS) and to sign documents.  Previously the sunrise period was due to start on 1 January 2023.  This delay means that that start date for the UPC will also be pushed back by two months, to 1 June 2023 (rather than 1 April). The UPC site says that no further delay is anticipated. This June start date would require Germany to deposit its instrument of ratification of the UPC Agreement in February.

This short delay to the sunrise period and UPC start date, may be welcomed by those who are still considering their strategies for the UPC and, in particular, opt-out.  It may also lead to more cases being brought to the court at the start date, given the increased period in which to assess the benefits of the new patent system and prepare for it.

The motivation for the postponement is to allow users to equip themselves with both a client authentication (hard device) and a qualified electronic signature. In order to address concerns from users in regards to suitable providers for the CMS authentication that comply with UPC requirements, the UPC IT team contacted by e-mail all the service providers available in the EU Trusted List. Based on the feedback it received from these service providers, an initial list (downloadable as a pdf on this page) was compiled, sorted by country, with information about the providers’ compliance with UPC requirements. The UPC site page detailing this carries a disclaimer that the list is not exhaustive and that it will be updated regularly; it is "an open ended list which will be amended as additional providers communicate their readiness to the UPC". The UPC IT team recommends that users contact their chosen provider before ordering certificates to ensure service availability.

The UPC site comments: "As strong authentication is required already for the Sunrise Period the initial timeline seems insufficient in view of the legitimate interests of users who have to find a provider and acquire the required authentication tools."

The site says that no further delay is expected as all secondary legislation needed has been adopted and the judges have been appointed and the Presidium has been formed and the Presidents of both the Court of Appeal and the Court of First Instance have been elected and have assumed their offices. "The Presidium of the UPC has concluded the interviews of candidates for the position of Registrar and Deputy Registrar completing the Court’s administration as of the beginning of next year, in time for the start of the Sunrise period on 1 March 2023. The functionalities of the CMS have been positively tested. The training of the UPC judges and the clerks is under way. No amendments to the roadmap are required in these areas."

Our fully integrated, market leading European patent litigation team is ready to advise on all aspects of the practical and strategic issues you should be considering in preparation for the UPC. Please contact us for further information.

For a short video discussion of how to prepare for the advent of the UPC  - watch/listen to Andrew Wells and Rachel Montagnon discuss how businesses should prepare for the UPC and unitary patent, including strategies to employ, licensing and co-ownership issues, as well as applications for opt-out and unitary effect.

For further background and comment on the UPC, see our recent UPC blog posts and the HSF UP and UPC hub.

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