One key aspect for the success of the new system relates to the patenting costs compared to the current European patenting system. Until today, the amount of the renewal fees for the Unitary Patent has not been announced. The industry is very critical on high fees, as it does not want to subsidize countries with small markets where patent protection is not attractive. Moreover, Spain and Italy will not be part of the new UP and additional patent protection will be necessary in these countries.
The UPR does not determine any fee, but only mentions some general criteria in Article 12 UPR. Now, for the first time, a document proposed by the President of the EPO to the Select Committee of the Administrative Council specifies several standard values for the upcoming renewal fees
These values adopt the most important criteria of Article 12 UPR like (a) geographical coverage of current European Patents, (b) reflection on the renewal rate of current European Patents; and (c) the reflected market size covered by the patent.
According to the proposal, the fees shall be set at the following levels: From year three to five the fees demand the level of the EPO’s internal renewal fees (fees payable to the EPO for pending patent applications currently). From year six to nine a transitional level between the internal renewal fees level and the year 10 level is estimated. For year 10 onwards the fee level is equivalent to the total sum of the national renewal fees payable in the states in which European Patents are most frequently validated. Relating to “the Year 10 onwards level”, two different suggestions are under discussion: The fee reflects either the current renewal fee levels for FOUR or FIVE European countries (TOP 4 or TOP 5 level). In the TOP 4 scenario the total sum of renewal fees will amount to EUR 37.995. The TOP 5 proposal could include a 25 % reduction for years two to ten, so that in total the total fees will be either EUR 41.655 or EUR 43.625.
In addition to the renewal fees, the costs for the application costs have to be considered as well. According to practitioners, the amount for a European Patent under the current system – including fees for lawyers, translation and offices – is around EUR 12.220. In contrast, the total application costs for a Unitary Patent may amount to EUR 8.300 and will thus be considerably higher than the amount of EUR 4.725 initially mentioned by the EU Commission.
It is obvious that the proposed fees under the new system will be higher than the comparable costs for a European Patent validated in Germany, France and the UK, particularly taking into account the fact that these countries participate in the “London Agreement” where no translation is necessary. For applicants who want to validate only in a small number of countries, the estimated costs are not attractive because of the high fee level. For those who validate in a large number of countries, the Unitary Patent will indeed be less expensive.