Europe is edging ever closer to uniform patent protection across most of the European Union. Now, finally, the likely costs of using the new system have been revealed. Here's a brief round-up of the latest news stories on the unitary patent and associated litigation system.
Unitary Patent Fees Approved - June 2015
The European Patent Office (EPO) has approved the "true TOP 4" proposal for unitary patent (UP) renewal fees. This means that UP owners will pay annual renewal fees equivalent to the sum of the annuities payable in the four EU Member States which are most commonly designated by applicants for European patents; the UK, France, Germany and the Netherlands. In other words, UP owners will obtain patent protection across almost all EU Member States for the price of a conventional European Patent covering four member states only. These fees will amount to €35,555 over 20 years.
Benoît Battistelli, President of the EPO, said: "The decision strikes a positive balance, ensuring that the fees represent a real cost saving to the user and also provide a healthy operating budget for the EPO and the participating member states."
The question now is whether and when these fees might tempt Spain to join the unitary patent system, potentially increasing the scope of protection to 27 EU Member States. Italy confirmed in May 2015 that it will join the unitary patent, having previously agreed to participate in the Unified Patent Court (UPC) only.
What will it cost to litigate in the UPC?
The consultation on the court fees for the UPC opened on 8 May 2015 and closes on 31 July. The consultation document sets out a draft proposal for the fees payable upon commencing and defending court proceedings, the ceilings on recoverable costs and the fee for opting traditional European patents out of the new court system (currently€80 per patent with no suggestion of any discounted fee for opting patents out in bulk).
A fixed court fee will be payable by the party filing the action in all cases as well as a value-based fee for certain actions, as required by the UPC Agreement. The proposed fixed fee for an infringement action is €11,000 and €20,000 for a revocation action. An additional value-based fee is proposed for cases with a value of more than €500,000 (although this is capped at €20,000 for revocation counterclaims). Click here for further details on how to participate in the consultation.
What will happen to the UPC if the UK leaves the EU?
Will the planned referendum on the UK's continued membership of the EU delay the opening of the UPC? It appears the UK IntellectualProperty Office has had this question in mind, since after months of speculation, it released the following statement to the IPKAT blog, last week:
"The Government is committed to this project and wants the UK to be part of a European patent system that supports growth and fosters innovation. The Prime Minister was personally involved in the negotiations on the Unitary Patent regulations and the UPC Agreement and the UK is taking an active role in the current work to implement the new system.
There is still work to be done before the UK can ratify the Agreement, and I am committed to pressing ahead with this. It is the Government’s intention for our domestic preparations to be completed by Spring 2016".
Questions remain as to how much money the UK government will be prepared to invest in setting up the UK Divisions of the UPC before the planned referendum. The statement is notably silent on when the Government intends to ratify the UPC Agreement. Even if it is proposing to ratify in 2016, will it want to secure a venue, administrative staff and IT system for the UK Divisions of the Court before this date, or is it likely to defer this investment? Indeed, might it delay ratification itself until after the 2017 referendum leading to inevitable delay to the UPC?
If the UK votes to leave the EU, it must also leave the UPC and UP although there is nothing to stop the new system continuing without the UK. However, it may well be less attractive to patentees and litigants if the UK is excluded. We would also expect the London branch of the Central Division to be moved elsewhere - possibly to the Netherlands which is the fourth biggest patent filing country in the EU. However, regardless of the UK's participation, the new system will still offer costs savings for patent protection and litigation covering a territory that is home to hundreds of millions of consumers.
A Guide to Litigating in Europe's Unified Patent Court
We have produced a guide to the new court system and how it will work. This will be updated regularly as the UPC moves towards its entry into force.