Unitary patent: The ‘Sunrise period’ for UPC opt-outs begins on 1 March

On 17 February, Germany ratified the Unified Patent Court Agreement. This means that the Unitary Patent and Unified Patent Court system will enter into force as planned on 1 June 2023, with the Sunrise period beginning on 1 March 2023.

Ratification by Germany on 17 February represents the final step required for the UPC Agreement (UPCA) to come into effect. The UPCA will formally enter into force on 1 June 2023, with the Sunrise period starting in just over a week, on 1 March 2023. 

The Sunrise period is a three-month period leading up to the start of the Unitary Patent system. During the Sunrise period it is possible to submit ‘opt-out’ requests to remove granted EP patents and published EP applications from the jurisdiction of the UPC.

If you have not already done so, now is the time to decide on your opt-out strategy and provide your legal adviser with instructions.

Opting out: A short refresher of the pros and cons

Having your patent within the jurisdiction of the UPC may be appealing if there is a possibility that you may want to enforce your patent across many jurisdictions in a single action (this could be particularly advantageous in terms of cost if your patent family is large).

The biggest risk of remaining within the jurisdiction of the UPC is that of centralised revocation: a single action could result in the revocation of all national validations in countries that have ratified the UPC Agreement.

For more insight on the pros and cons of the unitary patent system, please read our detailed articles on opting out from the jurisdiction of the UPC and choosing the right European patent filing route for your organisation, or download our practical guide to the unitary patent. 

Opting out: Why the clock is ticking on your opt-out declarations

While existing European patents and published applications may be opted out of the jurisdiction of the UPC at any time until one month before the end of the transitional period (at least seven years from the UPC Agreement coming into effect), opt-out requests cannot be filed if an action has already been brought before the UPC. 

Therefore, to guarantee that a third party cannot start a central revocation action at the UPC on the first day that the UPC is operational, it is advisable to file opt-out requests in the three-month Sunrise period.

For further details on the UPC opt-out process, read our guidance on how to manage UPC opt-outs effectively.

Advice on UPC opt-outs and the unitary patent

Novagraaf is here to help with all your unitary patent and UPC needs, including filing opt-out declarations, advising on protection routes (national patents, national validations and/or unitary patents), and filing patent applications through the route you have chosen.

As a Questel company, we can also assist with the following tech-enabled solutions:

• Preparation: Unitary Patent landscape analysis from Questel Consulting to help guide your opt-out strategy; 
• During the Sunrise Period: Dedicated technology to facilitate our UPC opt-out services, plus watches on competitors’ opt-out strategies;
• When the UP/UPC is live: Technology to manage requests for European patents with unitary effect, required translation and annuity payments.​​​​​​ 

We appreciate that this is a complex topic and our experts are here to help. Don’t hesitate to get in touch for further information or support.