While the European unitary patent is intended to guarantee supranational protection for inventions, the agreement to establish the Unified Patent Court (UPC) still has to be ratified by several Member States.
Serious financial hurdles (such as extremely high fees) will have to be overcome in order to bring annulment procedures before the UPC. These hurdles could make access to justice quite complicated, or even impossible, for small and medium-sized enterprises (SMEs), civil society organisations (CSOs) and some smaller Member States, especially eastern and southern ones.
What are the fees for filing a patent revocation (annulment) request with the UPC, and what costs will be charged by patent professionals for bringing cases before the UPC?
What ceilings are applicable for the costs to be refunded by a company that violates a competitor’s patent, even unintentionally?
How will access to justice be ensured for SMEs, CSOs and eastern and southern Member States?
REPONSE du 7-02-2017, valable pour les questions parlementaires suivantes : E-006325/16 , E-006324/16 , E-006326/16.
The Commission is committed to the unitary patent package project. The impact on the volume of patent applications filed at the European Patent Office is difficult to predict with certainty. It is likely that some of the classical European patents will opt for the unitary effect rather than being validated as a bundle of national patents. Moreover, more patents could become effective in Member States where currently the European patents are rarely validated(1). The Unified Patent Court Agreement contains limitations to the scope of the unitary and of the classical European patents particularly in the field of agriculture and seed where a limited breeder exemption has been inserted.
The Commission does not have concrete and tangible information to suggest that the phenomenon of patent trolls is widespread in Europe. The introduction of the new system should not lead to an inflation of injunctions granted by the future Court in favour of these entities since, according to Article 62 of the Unified Patent Court Agreement, judges will only grant injunctions on solid and robust grounds.
As regards Unified Patent Court fees, in case of patent revocation, companies have to pay a fixed fee as well as other fees depending on the value of the actions. The costs charged by patent professionals for bringing cases before the future Court will be decided by patent attorneys. The ceilings for recoverable costs due to patent infringements depend on the value of the proceeding. Small enterprises and micro-enterprises are entitled to pay only 60% of certain fees. Small entities can request a reduction if the amount threatens their economic existence. Alternative dispute resolution mechanisms such as mediation and arbitration remain available.
(1) Thus, some companies from third countries could be indeed inclined to privilege in certain circumstances the unitary patent instead of classical European patents.