Proposals for annual fees for the unitary patent tabled

Authors: Dr. Jacekas Antulis, Associated Partner at METIDA, Head of the Patent Division, Renata Andužienė, Patent Consultant at METIDA

3455272493_983d9c4204_zThere have been a lot of guessing and discussion in Europe for a long term what the new price of the unitary patent will be. Those interested in the new system have finally learnt the proposed amounts of annual fees for the unitary patent. Benoit Battistelli, President of the European Patent Office (EPO), tabled two proposals for amounts of the annual fees, which are called TOP 4 and TOP 5. It should be pointed out that the annual fees will account for a considerable part of the unitary patent price.

According to the TOP 4 proposal, annual fees will have to be paid starting with the 2nd year already (currently, the annual European patent renewal fees are due from the 3rd year) and will amount to EUR 350. It is provided that the fees for years 3–5 will remain the same as currently paid to the EPO, i.e. EUR 465, EUR 580, EUR 810. The amounts of the annual fees for years 6–9 will be somewhere in between the annual fees for years 3–5 currently paid to the EPO and the annual fee for the unitary patent for year 10. Calculations have been presented that the following annual fees will be payable: in year 6 – EUR 855, in year 7 – EUR 900, in year 8 – EUR 970, in year 9 – EUR 1,020. The fees for the same years, currently payable to the EPO, are 18–22% higher (in year 6 – EUR 1,040, in year 7 – EUR 1,155, in year 8 – EUR 1,265, in year 9 – EUR 1,380). Starting from year 10, the fee for each year will accordingly be of the same amount as the amount of the European patent annual fees paid each year to 4 most popular states: England, France, Germany, and the Netherlands (according to the currently effective procedures, after the issue of a European patent, it may be validated to national states one wishes, where after such an validation one has to pay annual fees set by that state every year). According to the TOP 4 proposal of the EPO, the fee for year 10 will amount to EUR 1,175, whereas the fee for year 20 will already amount even to EUR 4,855, whereas the annual fee currently payable to the EPO does not change from year 10 to year 20 and amounts only to EUR 1,560.

If prices according to the TOP 5 proposal are approved, the amount of the annual fees will start at EUR 350, but in year 20 it will reach EUR 5,500. Starting from year 20, the fee for each year will accordingly be of the same amount as the amount of the European patent annual fees paid each year to 5 most popular states (England, France, Germany, the Netherlands, Sweden). This proposal provides for 25% discount for small and medium enterprises (SMEs), natural persons, non-profit organizations and universities. But it is important to mention that the said discount would be applicable only in years 2–10 of paying annual fees. The interesting thing is that a patent, for which one would pay for all 20 years, would cost, according to the TOP 5 proposal without discount, EUR 5,630 more than according to the TOP 4 proposal, and after the discount it would still cost EUR 3,660 more than according to the TOP 4 proposal.

It was forecast even before the announcement of these proposals for annual fees that the new unitary patent system would be significantly cheaper and more affordable, especially for small and medium businesses. It was expected that the amount of the annual fees would be equivalent to the European patent annual fees paid each year to 3 most popular states or even less. No wonder that the announcement of the new prices caused a rise of discussions and discontent – this proposal is criticized by future applicants and their representatives. The EPO has already received letters from BusinessEurope and the AIPLA (American Intellectual Property Law Association) organizations, where they write that they are seriously concerned that the proposed fees can make the unitary patent system unattractive.

In addition to the price, which is higher than expected, it is said that another deficiency of the unitary patent system is that Italy and Spain, which are among the largest European markets, have refused to take part in the system (Italy has only signed the Agreement on the Unified Patent Court so far). In spite of that, it has been recently announced that the position of Italy is not absolutely clear yet – though the Italian Government tends to join the unitary patent system, other stakeholders in Italy do not approve of the participation.

It is likely that the new unitary patent will not be attractive for small enterprises, which validate the European patent to one, two or three most popular countries (England, France, Germany), but for enterprises which have validations to six or even more countries in mind, the unitary patent will be a cheaper choice than the classic European patent.

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