Progress update on the Unitary Patent and Unified Patent Court - June 2015

11 六月 2015

The Court of Justice of the European Union (CJEU) has given its judgment in Spain’s challenge to the Unitary Patent Regulation. With the CJEU having dismissed both of Spain’s claims, the last legal hurdle in the way of progress towards the unitary patent (UP) has now fallen away. In light of that, this article takes stock of the issues which have been resolved, and those that remain pending, for the UP and the Unified Patent Court (UPC).

Fees

In the latest edition of our IP disputes newsletter (for a copy of which, please click here) we reported on the EPO’s proposals for renewal fees for the UP. Possibly in response to the criticism those received, the EPO has now proposed a revised level of renewal fees along the lines suggested by the critics of the earlier proposals. The EPO revisions include reduced fee levels for patent years 2-9 and more comprehensive economic analysis to support the chosen fee structures.

The UPC preparatory committee has finally published its consultation on court and opt out fees for the UPC. A copy of the consultation is available at www.unified-patent-court.org/consultations. The preparatory committee has asked for any comments by 31 July 2015.

The key points are:

  • Proposed opt out fee of €80 per patent family
  • Mixture of fixed and value based fees for commencing most proceedings
  • Very detailed scaled court fees according to the value of dispute (up to €220,000 for claims in excess of €30 million)
  • Fixed fee of €20,000 for revocation actions
  • Alternatives for discounted/refunded fees and/or specific SME and other support (such as exemption from payment of value based fees)
  • Scale ceilings for recoverable costs up to a maximum of €3 million for claims exceeding €50 million

Preparatory Committee

The preparatory committee held its latest meeting on 5 May. As well as agreeing on the consultation document for court fees and recoverable costs in the UPC, the committee considered how to launch the provisional application of those parts of the UPC agreement “needed to secure a smooth transition into the operational phase”. It is understood to have made good progress in preparation of the text to deal with this.

The committee also anticipated closing its deliberation on the rules of the patent litigation certificate by a written procedure. Further, it stated that the first two modules of the judges’ training have been completed and will continue with internships in Europe’s most specialised patent courts.

The committee is next due to meet on 10 July.

Ratification

With Luxembourg having ratified on 22 May 2015, seven of the required 13 states (which must include the UK, Germany and France) have now ratified (France already having done so). Portugal is expected to ratify soon.

Practicalities

Good progress is still being made towards the IT infrastructure, facilities and finance issues which need to be resolved before the UPC is up and running. Subject to sufficient ratifications, the UPC is likely to be open for business in early 2016.

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