The UPC Preparatory Committee has announced a potential start date of 1 April 2023 for the unitary patent system with the sunrise period scheduled to start on 1 January 2023.

A key part of the UPC will be a fully functional case management system but there are unfortunately many unanswered questions regarding this IT platform with many patent attorneys in the dark about how to efficiently lodge bulk opt out requests and, with less than three months to go before the sunrise period is scheduled to start, a need to get to grips with the recently announced strong authentication system requirements.

Is the UPC CMS ready?

The UPC CMS in its current format (v0.65.3) is largely unchanged from the version that this ipcopywriter first tested back in 2017. The interface is, if I’m being honest, somewhat underwhelming with seemingly no real consideration given for how the system will be used in practice. The announcement last month of the need to secure eIDAS compliant certification has only added to the feeling that the early half of 2023 is going to be a bumpy ride.

The CMS seems as though it is going to support two basic types of functionality, (i) the lodging/withdrawal/correction of opt out requests, and (ii) case activities, e.g. infringement, revocation and other case actions.

Functionality (i) would seem to largely fall within the wheelhouse of the patent profession but, given the issues surrounding the CMS, the average patent attorney might be forgiven for wondering whether the opt out system has been set up to fail.

In no particular order here are some issues and unclear UI choices that the CMS presents to the average patent attorney:

• Multi-click – Amazon famously patented a one click payment system (well, maybe not in Europe!) but the CMS has gone big in the opposite direction with something like 30 mouse clicks required to go from opening a new opt out request to actually submitting the request. Given lags in the system, even with all the information required to hand, it still takes somewhere in the region of 5 minutes (as a minimum) to process a single opt out using the manual interface. There is an option to stack 10 or so cases together but the process is still painfully slow.
• Bulk opt out – there is no built in bulk opt out facility with users required to build their own bulk opt out tools using the provided API. Question for the reader: does anyone know of a functioning bulk opt out tool that’s ready to go now?
• No Excel? Why or why was there no option to upload information via Excel file? It would have made bulk opt outs far easier to manage.
• API v. PDF – for “reasons”, the opt out process requires the submission of a PDF document that, largely, duplicates data that’s already been entered. Any additional data that’s included in this PDF could have been included in the rest of the user interface. The requirement for this PDF document to be part of the process adds a layer of complexity to the bulk out opt API functionality.
• Strong Authentication. The UPC website has today (12 October) been updated with more detailed information regarding the authentication system that will be used with the UPC. The new information will need to be digested but IPcopy understands that the provider referenced in today’s update (LuxTrust) can supply smartcards (and accompanying PINs) in around 10 days to 2 weeks from application. It is not clear how many other providers will be able to supply the credentials required.
• EPOline smartcards. As noted above there appear to be two main types of functionality that the UPC CMS will support. Seeing as European Patent Attorneys could be expected to be primarily responsible for processing opt out requests it is not in anyway clear why the EPOline smartcard couldn’t be used to allow EPAs to access the system (the recently updated FAQ section on the UPC website only says “we would not be able to use existing Smart Card systems such as the EPO (for example) use” without really explaining why not. IPcopy notes that the EPO smartcard is recognised on the authentication device test link even if it is not accepted). If EPO smartcards were not deemed suitable to grant full access to the system then it doesn’t seem to be too technically complex to set up a log in arrangement in which an eIDAS smartcard would grant full access (opt out and case functionality) whereas an EPO smartcard would grant opt out functionality only. Given the entire European patent profession already has these smartcards it would have made this part of the process far simpler for your average patent attorney.
• Ready to sign/Ready to send. The EPOline platform provides a multi user environment in which Records/Formalities teams can load cases via Drafts into Ready to Sign for review and signature by the EP representative. Signed cases can then be sent by the Records/Formalities team. There appears to be no equivalent functionality in the UPC CMS. Having jumped through hoops to secure their strong authentication certification, will users of the system immediately undermine that verification process by handing their smartcards to colleagues in order to load the cases onto the system? If not, will an attorney with a 500 patent family client be sat there manually entering case data on to the system in order to opt out the client’s portfolio or configuring their in-house bulk opt out tool to accept their credentials?

The CMS has a multitude of usability issues. The UPC Prep team however seem to be targeting an April 2023 start date. Will any of the above issues be resolved in time? Will opt out requests fail because of any of the above issues?

These are concerning times for anyone that will be responsible for lodging opt out requests during the sunrise period. We can only hope that if these issues are not resolved soon that the start date will be pushed back.