UPC releases contingency plan for hard copy opt-outs
Court outlines submission method in the event of CMS failure | Hard-copy format requirements include USB stick and delivery to Luxembourg | Guidelines have “made people nervous” say lawyers | Full details on how to submit.
The Unified Patent Court (UPC) has clarified its hardcopy opt-out application conditions should its case management system (CMS) fail before the end of the sunrise period on Thursday (June 1).
Responding to a “sharp increase” in demands on the court’s electronic CMS, measures to accept the filing of opt-out applications in hard copy if the CMS “ceases to function” were announced on May 25.
The UPC said the plan, which would allow users to hand in opt-outs via USB stick directly to the UPC Registry in Luxembourg, aims to smooth the procedure for users wanting to submit opt-out applications.
However, the CMS will also not be fully operational on May 31 as it switches to the Entry Into Force version of the system, the UPC announced on May 17.
This could be problematic, said EIP partner, UK and European patent attorney, and design attorney Darren Smyth, who said the hard-copy plan does “not address the main issue, namely that the CMS will be intentionally out of operation on May 31”.
Hardcopy opt-out applications will not be accepted on May 31, the last day to submit opt-out applications, as this is a deliberate system shutdown rather than a CMS system failure.
So the UPC “has removed the last day of the sunrise period at relatively short notice” said Smyth.
The guidelines are “incredibly complicated” and “time-consuming” said Smyth, given that a physical copy might have to be submitted in Luxembourg on short notice.
"[The guidelines] are quite disappointing, and I think it's got people quite nervous” he added.
The UPC will only accept hard-copy filings if it has been confirmed that the CMS is non-functional, which the court will notify via its website.
This could be a rare situation and is “not necessarily” reason to worry about how the CMS will work when the litigation functionality is added on Thursday, said Symth.
“But the fact that people who intended to file opt out are having real difficulty doing it is concerning and problematic in itself,” he added.
Hard-copy opt-out process
If the court’s CMS is not working, those intending to lodge opt-out applications in hard copy format must adhere to the following guidelines:
- The physical application must be submitted at the Registry of the UPC Court of Appeal in Luxembourg
- All opt-out applications must be stored on a USB stick. The specific requirements on what to include on the USB stick are detailed
- .
- A printout summarising all patents, published applications, and SPCs covered by the opt-out application must be included along with the USB stick.
- An email address to receive the receipt of the hard-copy filing.
Opt-out applications submitted in hard copy using this temporary solution will not be considered lodged until they are filed electronically in the CMS. This will be confirmed when the court declares that the CMS is fully operational again.
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