The Preparatory Committee has today announced the outcome of its last meeting which took place on the 24-25 February 2016, at which the Rules on Court fees and recoverable costs for the UPC were agreed and published (albeit subject to legal scrubbing) alongside an Explanatory Note and additional Guidelines for determining value-based fees.  In short, the Preparatory Committee has

  • Removed the fee to opt-out of the UPC (and to withdraw an opt-out), noting that there if there is no fee to be paid there is no additional cost to the Court associated with the opt-out process  
  • Confirmed the scales of fixed and value based fees, which are not dissimilar to those originally proposed (€11,000 + value based fee for infringement and €20,000 for revocation)  
  • Provided guidance that the value of the claim for the purposes of identifying the value-based fee should be assessed on the basis of an appropriate licence fee.  
  • Confirmed that in a multi-party, multi-patent action, only one fixed and one value-based fee should apply.  
  •  Provided a fee discount of 40% for SMEs, with some provisions which appear to seek (although it is unclear how successfully) to protect against exploitation of those provisions by NPEs.  
  •  Set out provisions for reimbursement of partial fees where cases are heard by one judge, withdrawn or settled, or in circumstances where the fee level threatens the economic existence of a party.    
  • Imposed a (moveable) ceiling on recoverable costs in a manner dependent on the value of proceedings, ranging from €38,000 for proceedings valued at €250,000 to €2m for proceedings valued at €50m.  There are also provisions allowing the ceiling to be raised by up to 50% for cases valued up to €1m, 25% for cases valued from €1m-€50m and up to €5m in cases valued at over €50m, where the case is particularly complex or multilingual. The parties’ financial capability will be taken into account.  Ceilings may be lowered in relation to micro-enterprises, SMEs, non-profits, universities, public research organisations and natural people where the costs would threaten the economic existence of the party.

  A more detailed commentary will follow shortly.