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Unitary Patent Update

Progress continues on the unitary patent system; this article summarises some key developments which have occurred over the last few months.

Renewal fees agreed and adopted

Renewal fee cost levels will have a large part to play in determining the success of the unitary patent system – a certain fee level will be required by the EPO to make the system economically viable, but too high a level risks discouraging use of the system in the first place.

As was widely reported, “Top 4” and “Top 5” levels, being the sum of renewal fees for the top four and five most commonly validated states, respectively, were previously put forward for consideration to the EPO’s select committee.

At its meeting of 15 December 2015, the committee adopted the “Top 4” proposal, which reflects the combined renewal fees currently payable to maintain a European patent in the United Kingdom, France, Germany and the Netherlands.

This fee level is higher than the “Top 3” which many users had been hoping for, and which would have reflected the most common practice of validation in the UK, France and Germany only. However, the “Top 4” level is still less than many had feared and will cover renewal in all unitary patent member states.

Secondary legal framework adopted

In addition to adopting the “Top 4” renewal level, the committee meeting also resulted in the adoption of a number of other important legal and financial provisions, including rules relating to unitary patent protection and rules relating to the distribution of fees amongst the participating member states. Under the latter distribution framework, the EPO is entitled to 50% of each renewal fee, while the other 50% is split between the member states using a formula that takes account of the GDP and the number of applications originating from each country. The agreement and adoption of the renewal fee distribution key is widely recognised as an important step towards implementation of the unitary patent system.

UPC fees agreed, UK delegation secures zero opt-out fee

The Preparatory Committee for the Unified Patent Court (UPC) announced on 26 February 2016 its agreement on the rules on court fees and the levels of recoverable costs. A press release from the UK’s Intellectual Property Office highlights that “through 18 months of hard work” by the UK delegation to the Committee, agreement was made that there should be no opt-out fee to remove a “classical” European patent from UPC jurisdiction – previously, an opt-out fee of around 80 Euros per patent had been expected. This is good news for existing European patent holders not wishing to use the UPC system.

Italy now a party to the unitary patent system

Despite signing the UPC agreement, Italy was previously opposed to joining the unitary patent system itself. Italy represents an economically important EU state, and its omission (along with Spain) was seen as a significant drawback to the unitary patent system.

Potential users will therefore be pleased to note that Italy has joined the unitary patent system, through the so-called “enhanced cooperation” procedure.

Finland ratifies the UPC Agreement, UK and Germany move closer to ratification

Early in 2016, Finland became the 9th member state to ratify the UPC agreement, and in doing so joins Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal and Sweden.

For the agreement to come into force, ratification by a minimum of 13 states is required, with ratification by France (which has already ratified), the United Kingdom and Germany being mandatory. Ratification by the UK and Germany has now moved closer to reality with the recent publication of draft law proposals by each of these states.

Specifically, the UK Government has recently published a draft Statutory Instrument, intended to make alterations to the UK’s existing Patents Act 1977 to account for both the unitary patent and the UPC. This draft is expected to be approved relatively swiftly, but will only become law once the UPC comes into effect. The German Federal Ministry of Justice has likewise published two draft legal documents, containing proposals to ratify the UPC agreement and to account for the unitary patent by amending existing German patent law.

For more information on any of these issues, please contact Andy Cloughley at


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