Regulations (EU) No 1257/2012 and (EU) No 1260/2012^[ 1 ] setting up the Unitary Patent will apply from the date of entry into force of the Agreement on a Unified Patent Court (UPCA).^[ 2 ] By decision dated 11 November 2022,^[ 3 ]
the President of the European Patent Office (EPO) has given European
patent applicants the possibility to request that the issuance of the
decision to grant a European patent be delayed so that the mention of
the grant is published in the European Patent Bulletin on or immediately
after the date of entry into force of the UPCA (i.e. on or after the
date of application of the above-mentioned EU Regulations) in order to
allow the registration of unitary effect for that European patent.

This decision will enter into force on
1 January 2023 and will apply to all pending European patent
applications. It will cease to have effect on the date of entry into
force of the UPCA, i.e. on the date of application of the
above-mentioned EU Regulations.

This notice repeals the notice from the EPO
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 (OJ EPO 2022, A5)
as of its date of publication in the Official Journal of the EPO. It
provides information on the exercise of this temporary possibility to
request a delay of grant in view of the forthcoming introduction of the
Unitary Patent, and on its practical implications. Please note that the
present notice merely reflects the adjustment of the start date made to
the above-referred decision of the President of the EPO and that no
other changes were made.

A. Form of the request for delay

The request for delay must be filed on FORM 2025 provided by the EPO. Otherwise, it will be deemed not to have been filed. FORM 2025 should preferably be filed online.

B. Admissibility of the request for delay

A request for delaying the issuance of the decision to grant a European patent 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.^[ 4 ] Any request that does not meet these requirements will be deemed not to have been filed.

This means that applicants can file a
request for delay, as long as they have not yet approved a text for
grant communicated to them under Rule 71(3) EPC.
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.
Applicants requesting reasoned amendments or corrections under Rule 71(6) EPC in response to a communication under Rule 71(3) EPC
may at the same time file a request for a delay of grant. Any such
request filed after receipt of their approval of the text for grant will
be deemed not to have been filed.

A request for delay has no effect on the four–month period for replying to the communication under Rule 71(3) EPC. Applicants
must therefore still file a reply to this communication within the
applicable time limits. Otherwise, the European patent application will
be deemed to be withdrawn under Rule 71(7) EPC, even if a delay of grant has been validly requested.

In the case of a subsequent communication under Rule 71(3) EPC, a request validly filed in respect of an earlier communication under Rule 71(3) EPC will remain effective.

The examining division may resume
examination at any time during the period the decision to grant is
delayed, e.g. if third party observations so require.

Please note that a request for delay can
only be filed as from the date of entry into force of the
above-mentioned decision of the President, i.e. as from 1 January 2023.
Any request filed before that date will be deemed not to have been
filed.

A request for delay can be withdrawn at any time.

C. Obtaining a Unitary Patent: separate request for unitary effect

In order to obtain a Unitary Patent, a
separate request for unitary effect must be filed with the EPO. Detailed
information on how to obtain a Unitary Patent can be found in the
Unitary Patent Guide available on the EPO website.

A validly filed request for delay will
ensure that the European patent is granted on or after the date of
application of Regulation (EU) No 1257/2012. The granted European patent
will then be eligible for registration as a Unitary Patent.

In order to facilitate the introduction of
the Unitary Patent system, the EPO will also allow the filing of
requests for unitary effect already as of 1 January 2023. Such early
requests for unitary effect may only be filed for European patent
applications in respect of which a communication under Rule 71(3) EPC
has been despatched. For further information please see the Notice from
the European Patent Office dated 11 November 2022 concerning the
forthcoming introduction of the Unitary Patent and the possibility to
file early requests for unitary effect.

^[ 1 ] See OJ EPO 2013, 111 and 132.

^[ 2 ] See OJ EPO 2013, 287.

^[ 3 ]
Decision of the President of the European Patent Office dated
11 November 2022 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.

^[ 4 ] It is to be noted that the date of despatch of the communication under Rule 71(3) EPC is the relevant date here, not the date of notification of that communication.