It’s nearly three weeks since the start of the Sunrise Period for the Unified Patent Court and the production version of the Case Management System (CMS) was switched on. Before the Sunrise Period started the biggest question I had over the CMS was whether it would cope with the expected influx of opt-out registrations. However, with only 2217* opt-outs lodged in the first three weeks, due in probably no small part to the fact that the API functionality has been limited, the CMS hasn’t yet been tested on that front.

On the issue of UPC representative applications however, things appear to be getting messier by the day with a proliferation of double/triple/even septuple applications associated with a single individual and, in a few cases, double “processed” registrations for the same individual.

Like many patent attorneys who have followed the development of the Unitary Patent Project, I was ready on 1 March to make my application to be a UPC representative. When applications started switching from “Pending” to “Registered” status shortly after the Sunrise Period began I anticipated being confirmed as a UPC Representative which would remove the need to seek authorisation mandates from patent owners when lodging opt-out requests**.

However, as has been covered elsewhere (CIPA’s UPC Discussion Board and the EPI Forum), the processing of UPC representation applications does not appear to be following a logical pattern.

Instead of working through applications from earliest to most recent, the UPC Registry appear to be ignoring UPC Representation applications that were filed on 1 March (up to at least early afternoon on that day).

Applications filed more recently by contrast appear to be being processed within a few hours (or in some cases minutes).

Quite why the UPC Registry is not starting at the beginning is a bit of a mystery. Perhaps they can’t see the early applications for some reason on their system (though I can’t think why this would be the case). Perhaps they receive a virtual pile of registration applications to review and they have to start with the application that’s top of the virtual pile (in which case anyone with an application from 1 March 2023 could be waiting for a long time!).

Regardless of the reason for the delay, I’m resigned to wait out the process.

Last week however I became aware that some applicants, presumably frustrated with the delays in the processing of UPC representation applications, had started filing duplicate applications. When people started reporting that such duplicate applications were being processed and approved quickly this seemed to spur even more duplicate applications to be made.

Curious to see widespread this issue was I’ve taken a look (with thanks to Joeri Beetz for grabbing the data from the UPC CMS) to see how many extra applications are sitting on the system. The results (which reflect the state of the CMS this morning) are surprising!

• 58 people appear to be associated with two or more registration attempts.
• In total these 58 people are associated with 138 registration attempts which means the total is out by 80.
• There are two people with 7 (seven!) registration attempts.
• However, the above two individuals do not appear to have lodged 6 additional applications themselves. Rather, the additional applications appear to be an artefact of the CMS itself (since all 7 applications have the same date and time of lodging).
• There are five people who have been Registered as a UPC Representative twice! In these cases it appears that different people at the UPC Registry have checked the applications and haven’t picked up on the duplication.

The messiness of the application processing for UPC Representatives is frustrating. The system itself appears to be misfiring on some occasions and generating spurious additional applications. In other cases people are getting frustrated by the way the UPC Registry has chosen to process applications and are making additional applications. In both instances these additional applications will be slowing down the processing of applications and while these issues go unaddressed more people will probably make additional applications.

It would be appreciated if the UPC Registry could actually acknowledge the above issues and clarify why they are processing applications in the order they are. Perhaps if we got clear indications that the earlier applications are being processed then the temptation to make additional applications would be reduced.

I won’t be holding my breath though as the entire rollout of the platform has been sub-optimal.

Still, at least we’ve got the fix of the API to look forward to and I might then get the answer to the question “Can the CMS handle all the bulk opt-outs we’re expecting?”

*at time of writing

**I appreciate that the UPC website states that Representatives with “pending” applications can proceed to lodge opt-outs on the assumption that the application would be processed in due course. The reality of course is that, even if you know you’ve filed the correct documentation, nothing beats actually having a confirmed registration and that in the absence of a confirmed registration many representatives would probably want to play it safe by obtaining a mandate.