Things do not always go as planned. What happens to the request when the conditions are not met, or when the proprietor has missed the one-month deadline?
Rectification and Subsequent Refusal
When the request for unitary effect contains an irregularity, the EPO first invites the proprietor to correct it within a specified period (Rule 6 of the Rules relating to Unitary Patent Protection (UPR)). If the irregularity is not corrected, the EPO rejects the request by decision.
The Pitfall of Reverting to the « Bundle »
In case of refusal, the patent remains a « classic » European patent, to be validated country by country. However, the national validation deadlines (often three months from grant, Article 65 of the EPC) may have expired in the meantime. Betting everything on unitary effect without a national validation safety net is therefore a gamble: in case of a late refusal, one may end up with nothing.
Restoration of Rights
The one-month deadline is non-extendable, but it may be subject to restoration (Rule 22 UPR), provided that it is demonstrated that all due care was exercised (the classic « due care« ), within strict deadlines (generally two months after the removal of the impediment, and no more than one year). Suffice to say, one should not rely on this as a strategy: it is a safety net, not an alternative timeline.
The Appeal: Before the UPC, Not the EPO
Here lies the peculiarity of the system. When the EPO rules on unitary effect, it does not act as the granting authority under the EPC: it performs a task entrusted by Regulation 1257/2012 (Article 9).
Consequence: its decisions on unitary effect are not appealable before the EPO Boards of Appeal, but before the Unified Patent Court (Article 32(1)(i) of the Agreement on a Unified Patent Court). Thus, one challenges an EPO decision… before a court, not before the EPO itself. It had to be thought of.