For those seeking patent protection across a number of European countries, the Unitary Patent is an attractive alternative to a traditional European patent application, mainly due to the lower costs associated with both prosecution and litigation.
Court fees and cost implications
Unitary Patents can only be litigated at the Unified Patent Court. For the first seven years, it will be optional for proprietors to litigate their traditional European Patents before the UPC. Proprietors can choose to “opt out” their European patents from the jurisdiction of the UPC. There is no fee for opting out, or for withdrawing an opt-out.
The court fees will be made up of a fixed fee, combined with a value-based fee when the value of a case is above the set ceiling of €500,000. The value-based fees rise according to the value of a case and range from €0 to €325,000. Value-based fees will not apply to revocation actions or counterclaims.
A basic infringement action or a declaration of non-infringement will have a fixed fee of €11,000, whereas a revocation action will have a fixed fee of €20,000.
The scale of recoverable costs will range from €38,000 to €2 million depending on the value of proceedings. The maximum award of recoverable costs is €2 million for a case valued at more than €50 million. This is in keeping with the Rules of the UPC, which provide that a successful party is entitled to recover reasonable and proportionate costs. The Court may, at its discretion, lower the amount of recoverable costs if the amount would threaten the economic viability of the requesting party, particularly if the requesting party is a natural person, non-profit organisation, public research organisation or a university.
Small and micro-entities will benefit from a 40% reduction in court fees. Further reimbursements will be available for using a single judge or early withdrawal or settlement of a case. Legal aid will also be available for natural persons most in need. The UPC also has a dedicated mediation and arbitration centre – showing emphasis on alternative dispute resolution.
The Unitary Patent offers savings considerable savings in relation to enforcement of rights. A patentee will only need to enforce their patent in one court, rather than in multiple national courts, negating the accumulation of litigation costs in several jurisdictions.
Take home line
Unitary Patents are cheaper to enforce than traditional European patents, and offer a reduced administrative burden, making them an attractive alternative to traditional European patents. The fixed fees associated with Unified Patent Court proceedings give parties greater certainty, and the streamlined approach avoids multiple litigation proceedings ongoing simultaneously in a number of jurisdictions. However, as patents can be invalidated in all participating Member States in a single attack before the UPC, the high risk of invalidation should not be overlooked when assessing the cost-benefit of opting in to the UPC.
This article continues FRKelly's series on the upcoming Unitary Patent and Unified Patent Court. For more details, check out the following articles:
2. What is the Unified Patent Court?
3. How to Apply for a Unitary Patent
5. Register for Unitary Patent Protection
7. What Rights Are Afforded by a Unitary Patent?
8. UPC Opt-Out
9. Opposition, Appeals and Validity of Unitary Patents
10. Will the Unified Patent Court Affect SPCs?
13. Ireland and the Unified Patent Court
14. No More Fooling Around: April 1st is UPC Launch Date
15. Unified Patent Court Costs
16. Validity Actions at the UPC
17. Assignments and Licenses Under the Unitary Patent System
18. The UK and the Unified Patent Court
19. Delay to Start of UPC Sunrise Period
