[BREAKING] UPC and Sunrise start dates pushed back by 2 months to 1 March 2023

The AmeriKat resting a bit easier 
with the UPC news

An early holiday present for Unified Patent Court users this morning.  This morning came the announcement that the start of the UPC is being pushed back by two months.   The start of the Sunrise Period has moved from 1 January 2023 to 1 March 2023
, thus making the official start of the UPC being 1 June 2023.  

According to the announcement which was signed by Judge Klaus Grabinski (President of the UPC Court of Appeal) and Johannes Karcher (Acting Chairman of the Administrative Committee) :

"the additional time is intended to allow future users to prepare themselves for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents.  

Users will need to equip themselves with both, a client authentication (hard device) and a qualified electronic signature. Further detailed information on the authentication is published on this website. Included is a list of providers who have informed the Court that they meet the required technical standards. This is an open ended list which will be amended as additional providers communicate their readiness to the UPC. 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. 

As a consequence, the Sunrise Period will start on 1 March 2023 followed by the entry into force of the UPCA on 1 June 2023. As all other preparatory work is on track and in line with the published roadmap we expect no further delay of the start of the UPC beyond 1 June 2023. Secondary legislation, like e.g. the UPC Rules of Procedure, has been adopted. The Judges of the UPC have been appointed, 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."

This announcement comes off the heels of users (propelled by in-house counsel) calling for delays to the start of the sunrise period given the ongoing issues with obtaining the security devices needed to access the CMS and important questions around the interpretation of the Rules of Procedure (see AmeriKat posts here and here).

So, some additional time for users.  And, although the "functionalities of the CMS have been positively tested", there is no word as to whether there will be clarity as to some of the substantive interpretation issues raised by users on the Rules of Procedure in relation to opt-outs or whether there will be an extension of the Sunrise Test Practice Period - which would be welcome to give users more time to test the system. 

CIPA President Alasdair Poore said:

“This news is really welcome. The decision by the Preparatory Committee is absolutely the right thing to do, to give sufficient time for the strong authentication system to be fully tested before the sunrise period for opt-outs commences. We applaud the Committee’s consideration of the issues raised by CIPA and others. We also appreciate that this was not a straightforward decision: users are in the process of planning for the Court opening, and that also includes managing the grant of existing EP applications to take advantage, where desired, of unitary effect. 

The delay itself doesn’t alleviate our concerns, but gives the time needed for the system to be fully tested before the court goes live. This is welcome given the newness of the CMS and the use of strong authentication. The extra time will allow potential suppliers to test and evaluate their products properly against the UPC requirements and hopefully take whatever action is needed to ensure compliance, and, in turn, to provide choice for users and their attorneys – essential to ensure that users have the benefit of competition as well as alternative solutions. This cannot be guaranteed but we are in a better place now suppliers have the time.

We now look forward to further guidance being issued so that attorneys can secure the services of compliant suppliers and work with the UPC IT support team to give confidence that the system works as intended before the start of the sunrise period. Given the importance of the UPC to the IP ecosystem in Europe, it is essential that the system operates effectively from day one.” 

Over to you, dear readers, to comment below on whether this additional time is enough or whether there are some additional issues that would be welcome to be addressed with the additional time we now all have.  

[BREAKING] UPC and Sunrise start dates pushed back by 2 months to 1 March 2023 [BREAKING] UPC and Sunrise start dates pushed back by 2 months to 1 March 2023 Reviewed by Annsley Merelle Ward on Monday, December 05, 2022 Rating: 5


  1. At 2 months, the delay is less than I would estimate is absolutely necessary (to ensure that all those who want a working secure device can obtain one before the start of the sunrise period). We shall have to wait and see whether it is enough. The list of providers added to the UPC's website may help - though even this is doubtful, especially if one considers how few providers of working secure devices there are (for example, Germany has only one, which does not offer remote identification).

    Still no sign of a user guide or manual for the CMS, though. That really ought to be the UPC's top priority now. This is because being able to access the CMS is no use whatsoever if you do not know how to use it in a manner that complies with the requirements of the UPCA and Rules of Procedure.

    1. It is most urgent that the UPC provides a user manual for the CMS and updated forms. Just an indication of the signature requirements for the mandate and the "application to opt out" would be very helpful. It is not acceptable that IT UPC gives an answer to an individual enquirer and this answer is "published" in a forum, eg epi.
      There is no official information available on the API.
      The FAQ are good, but these answers lack an output version or an "Authored: dd.mm.yyyy".
      Clear communication from the UPC would solve most problems (except an insufficient number of trust service providers for SmartCards accepted by the UPC). Whether the communication alone will be coherent until 28.02.2023? Unfortunately, there are considerable doubts.

  2. The EPO announced that they were going to be accepting early requests for unitary effect from the 1st January 2023 based on a projected UPC start date of 1st April 2023. Has anyone heard whether the EPO will change that based on the recent delay to the UPC?

    1. Why would the EPO worry about aligning the date of entry into force of their rules with the start of the sunrise period?

      If one starts thinking too much about the possible legal basis for the Decisions of the EPO President, then one can easily get in a right pickle. For example, one might consider Art 18(2) and (6) of Regulation 1257/2012. A straightforward reading of those provisions would indicate that unitary effect can only be requested once the UPC Agreement enters fully into force. As that is EU legislation, the PPA (which relates solely to provisional application of certain parts of an international treaty) is of no assistance.

      Of course, EU legislation is not (directly) binding on the EPO, and so the President (or the AC) is in theory free to issue Decisions that do not comply with EU law. The only trouble with that conclusion, however, is that the EPO has been tasked with applying and enforcing provisions of EU law. It is therefore rather an unsatisfactory situation if a body tasked with implementing EU law is not in any way obliged to implement it in accordance with the strict letter of that law.

    2. Well, it seems that the answer to your question is indeed "no".

      With regard to cases where decisions to grant are delayed, I am not sure what the EPO might do if there are further, unexpected delays to entry into force of the Unitary Patent Package. Again, though, the answer is probably nothing.


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