Decision concerning the forthcoming introduction of the Unitary Patent and the possibility of requesting a delay in issuing the decision to grant a European patent in response to a communication under Rule 71(3) EPC

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Decision of the
President of the European Patent Office dated 22 December 2021
concerning the forthcoming introduction of the Unitary Patent and the
possibility of requesting a delay in issuing the decision to grant a
European patent in response to a communication under Rule 71(3) EPC

This text is intended for publication in the
Official Journal (OJ) of the EPO. It is made available in advance on
the EPO website merely as a courtesy to the public. Only the text
subsequently published in the officially certified PDF file of the OJ is
authentic. It cannot be guaranteed that this advance version accurately
replicates that text.

The President of the European Patent Office,

having regard to Article 10(2)(a) EPC,

considering that

  • Regulations (EU) No 1257/2012 and (EU)
    No 1260/2012 setting up the Unitary Patent will apply from the date of
    entry into force of the Agreement on a Unified Patent Court (see
    Article 18(2) of Regulation (EU) No 1257/2012 and Article 7(2) of
    Regulation (EU) No 1260/2012),
  • the Rules relating to Unitary Patent Protection and the Rules
    relating to Fees for Unitary Patent Protection adopted by the Select
    Committee of the Administrative Council will also enter into force on
    the date of application of Regulations (EU) No 1257/2012 and (EU)
    No 1260/2012,[ 1 ]
  • the Agreement on a Unified Patent Court (UPCA) will enter into
    force on the first day of the fourth month after the deposit of the
    thirteenth instrument of ratification or accession in accordance with
    Article 84 UPCA, including the three Member States in which the highest
    number of European patents had effect in 2012 (Article 89(1) UPCA),
  • pursuant to Article 18(6) of Regulation (EU) No 1257/2012, unitary
    patent protection may be requested for any European patent granted on
    or after the date of application of that regulation,
  • pursuant to Rule 6(1) of the Rules relating to Unitary Patent
    Protection, a request for unitary effect shall be filed with the
    European Patent Office no later than one month after publication of the
    mention of the grant in the European Patent Bulletin,
  • applicants for a European patent may have an interest in delaying
    the issue of the decision to grant their European patent so that the
    mention of the grant in the European Patent Bulletin will be published
    on or immediately after the date of entry into force of the UPCA in
    order to allow for registration of unitary effect for that European
    patent,

has decided as follows:

Article 1

Request for a delay in issuing the decision to grant a European patent

(1) At an applicant’s request, the European
Patent Office shall delay issuing its decision to grant a European
patent so that the mention of the grant in the European Patent Bulletin
will be published on or immediately after the date of entry into force
of the Agreement on a Unified Patent Court.

(2) A request under paragraph 1 may be
validly filed only for European patent applications in respect of which
the applicant has been informed of the text intended for grant by a
communication under Rule 71(3) EPC but has not yet approved that text. It shall be filed using a dedicated request form provided by the European Patent Office.

(3) Any request under paragraph 1 not
meeting the requirements laid down in paragraph 2 or filed before the
entry into force of this decision shall be deemed not to have been
filed.

Article 2

Entry into force and termination

(1) This decision shall enter into force on
the date the Federal Republic of Germany deposits its instrument of
ratification of the Agreement on a Unified Patent Court pursuant to
Article 84 of this Agreement. The EPO shall communicate this date on the
EPO’s website.

(2) This decision shall apply to all pending European patent applications.

(3) This decision shall cease to have effect on the date of entry into force of the Agreement on a Unified Patent Court.

Done at Munich, 22 December 2021

António CAMPINOS

President

 

[ 1 ] See OJ EPO 2016, A39 and A40.