The most important consideration in deciding whether to use the EU Unitary Patent (UP) and Unified Patent Court (UPC), expected to be available in the last half of 2016, is the costs. In the last few days, the cost picture became much clearer.
Unitary Patent – The EPO President has sent “adjusted proposals” for UP renewal fees to the UP Select Committee, which is expected to set the fee schedule later this summer. Also provided were tables comparing fees and external costs of a conventional European Patent (EP) validated in various numbers of states with a UP. Copies are here and here.
The EPO had previously proposed that the renewal fees be based on the EPO application renewal fees in the earlier years after patent grant, and—in later years—either the fees in the “TOP4” participating states (France, Germany, Netherlands and the UK) or those in the TOP5 states (also including Sweden) with a 25% reduction for SMEs, etc. User groups had objected that those fees would be too high, especially with respect to the earlier years, and because users would not have the option of selectively abandoning in some states to limit renewal costs, as they do with conventional EPs.
Now, the EPO proposes TOP4 and TOP5 again, but with lower fees in the earlier years, comparable to the national fees in those years. The comparison tables now take account of translation costs, for both UPs and EPs, using either patent attorneys or specialized services. No outside consultation has been offered regarding these adjusted proposals. The next meeting of the Select Committee will be on May 26-27, 2015.
Even the current TOP4 proposal would cost at least 3 times more over the life of a Unitary Patent than renewals of a U.S. patent, and the UP will not include all EPO states or even all EU states.
Unified Patent Court – The Preparatory Committee of the UPC has published a draft of its court fee structure and launched an online consultation on that subject. See here and here. The consultation document comprises of two options for a revised Rule 370 (Court Fees), a table of fees, a scale of ceilings for recoverable costs and an Explanatory Note. Comments are due by July 31, 2015.
Alternative 1 of Rule 370 presents reimbursements to reward particular behaviors, for example, early settlement. It is intended that these types of reimbursements will particularly appeal to small and medium-sized enterprises (SMEs). Alternative 2 would reduce the level of the fees for a category of legal persons (SMEs, non-profit organizations, universities and public research organizations).
In other news from the meeting of the Preparatory Committee on May 5th, the Committee discussed how to launch parts of the UPC Agreement in advance of its effective date, to secure a smooth transition into the operational phase. The Committee appears to be close to agreement on the substantive text for Rules of the Patent Litigation Certificate. Finally, the Committee took note of the successful completion of the first two modules for the training of the judges. Training will continue with internships in Europe’s most specialized patent courts.