With high levels of demand for opt-out services, signs of strain are showing for the UPC Case Management System (CMS).
While the desire for opt-out services prior to the commencement of the UPC has come as little surprise to many commentators, the CMS has struggled to cope with demand as the number of opt-out requests has increased. Unfortunately, there have been delays, sometimes impeding the filing of opt-outs, as a result additional capacity has been added to the CMS to try to reduce a backlog of opt-out requests and improve user access.
In addition, public APIs are to have their requests limited and other users are being asked to limit their opt-out requests to only the “necessary” ones until after the end of the sunrise period to ensure those “necessary” requests are processed. Warnings have also been issued that more severe access restrictions may have to be implemented if demand continues to outstrip capacity, with the potential for public API requests to be closed off completely, and private APIs subjected to restrictions on the opt-out requests they can file until after the expiry of the sunrise period.
Of course, given the risk of actions being brought against patents and patent applications alike as soon as the UPC goes live on 1st June 2023, suggesting potential opt-out requests should be filtered by proprietors (and indeed administrators) would leave cases open to central attack under the UPC.
If a case is to be opted-out, and steps are taken to apply to secure an opt-out before the critical deadline of 4:00 p.m. (CET) on 30th May 2023 ,which has been identified as the cut-off point for filing an opt-out request before the instigation of the UPC, then the opt-out request should be processed in the manner desired by the proprietor. It remains to be seen whether all opt-out requests filed by this point will be recorded before the UPC comes into force on 1st June 2023.
The ability to opt-out of the jurisdiction of the UPC will, of course, continue to be available after the commencement of the court. However, the sunrise period was intended to give rights holders the ability to avoid becoming trapped in the UPC system. WP Thompson is therefore advising all our clients who are yet to finalise their opt-out strategy to do so without delay.
If you require any further information regarding the UPC or the opt-out process, or if you would like us to register any opt-out requests, please do not hesitate to contact us at upcoptout@wpt.co.uk or via your usual WP Thompson contact.