After the final version of the UPC Rules of Procedure had been adopted and the judges of the UPC had been selected and appointed, the start of the Sunrise Period, originally planned for 1 January 2023, was postponed to 1 March 2023.
Reasons for the postponement of the start of the Sunrise Period
According to an "Implementation Roadmap" published on 6 October 2022, the Sunrise Period was originally to start on 1 January 2023 and the UPCA was to enter into force on 1 April 2023. However, this timeline was changed again by a communication of 5 December 2022. According to the new timeline, the Sunrise Period will now start on 1 March 2023 and the UPCA will enter into force on 1 June 2023. This postponement was justified by difficulties with the UPC's case management system and the authentication of the system's users. Due to the requirements of the UPC's "strong authentication scheme", users must equip themselves with user authentication (i.e. a hardware device) and a qualified electronic signature. These must each come from qualified trust service providers as defined in Art. 3 No. 20 of the eIDAS Regulation (for further information see here ). There were apparently major difficulties in procuring the authentication instruments as well as in implementing the software solutions for the case management system.
Notwithstanding the postponement of the start of the Sunrise Period or the entry into force of the UPC, the 1 January 2023 start of the transitional measures of the European Patent Office (EPO) remained in order for there to be a timely claim of the European Patent with Unitary Effect. Since 1 January 2023, patent applicants have been able to file an early request for Unitary Effect or for deferring the publication of the grant of the European Patent (see detailed information here ).
Significance of the deposit of the instrument of ratification of the UPCA by Germany
With the deposit of the German instrument of ratification, nothing now stands in the way of the start of the UPC. According to Art. 89 (1) UPCA, the Agreement will enter into force on the first day of the fourth month after the deposit of the thirteenth instrument of ratification (i.e. on 1 June 2023). This date also determines the beginning of the Sunrise Period, 1 March 2023.
From the start of the Sunrise Period, patent proprietors can already file Opt-Out declarations before the entry into force of the UPCA, with the effect that the Opt-Out is treated under Rule 5.12 of the Rules of Procedure of the UPC as if it had been entered in the Register on the date of entry into force of the UPCA. Furthermore, from the start of the Sunrise Period it is possible to register as a representative within the meaning of Art. 48 UPCA.
Even though the start of the UPC is now clear, the start of the Sunrise Period does not mark the end of preparations for the UPC. The Implementation Roadmap still foresees some administrative steps during the Sunrise Period. For example, the budget of the UPC will be approved and staff of the Mediation and Arbitration Centre and the Training Centre will be selected and hired. In the last phase of the Sunrise Period, the case management system will be available and users will be able to register and no longer only receive test access.
Completion of preparations and open questions until the launch of the UPC
Despite the now fixed start date, it is still open whether and where a third division of the UPC's Central Division will be established. The wording of Art. 7(2) UPCA in conjunction with Annex II to the UPCA has so far expressly provided that the Central Division responsible for the fields of daily necessities, chemistry and metallurgy should be located in London. As a result of BREXIT, however, the UK withdrew its ratification of the UPCA and the UPC will therefore not establish a seat there. An alternative location has been discussed for some time, in particular Milan after The Hague and the Netherlands withdrew their application for a location as the third seat of the Central Division.
The location of the Central Division in Milan has not yet been officially confirmed, but this does not stand in the way of the UPC's start. As a transitional measure, the remaining signatory states had already informally agreed that the Central Division locations in Munich and Paris would share the responsibility for the Central Division location intended for London. However, a long-term solution is still being sought. The question can ultimately only be addressed in a legally secure manner by amending Art. 7(2) UPCA and Annex II to the UPCA.
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