A UP can be obtained based on any European patent that grants on or after the date on which the UPC opens for business (“the unitary patent system start date”).  This is currently expected to be some time in the fourth quarter of 2022/first quarter of 2023.

Prior to the UPC opening, there will be a so-called sunrise period of between 3 and 4 months.  During the sunrise period, the EPO will allow applicants to request a delay to grant of a European patent application as long as the request is filed before the text for grant is approved.  Grant will then be delayed until on or shortly after the unitary patent system start date.

For European patent applications which are currently pending and where the text for grant has not yet been approved, it should be possible to delay grant for long enough to keep open the possibility of obtaining a UP post-grant.

Before the sunrise period opens, options for delaying grant include requesting amendment of the text for grant and issue of a new Communication under 71(3) EPC, and/or making use of further processing to delay response to the Communication under 71(3) EPC.

Once the sunrise period opens, a formal request to delay grant can be filed at the EPO before approving the text for grant.

A valid request to delay grant can only be filed after the communication under Rule 71(3) EPC has issued and before approval of the text, although the EPO has indicated that a request for delay filed on the same day as the approval of the text intended for grant will be considered to have been validly filed.

If you are interested in delaying grant of any of your European patent applications, please let us know so that we can advise on the most appropriate strategy for the case in question.