Benoit Battistelli and
Margot Frohlinger (pictured, right) have separately spoken
about the challenge facing member states. Today representatives
of those member states who have signed up to the unitary patent
meet in Munich to begin the tricky task of deciding how
much the EPO should charge users for granting a UP and
maintaining it for 20 years.
In principle it
should be a fairly straightforward exercise: the EPO needs to
estimate how much it will cost to examine applications for the
UP and maintain a register of rights, and then factor in a few
extra considerations: not cheap enough to prompt a deluge of
applications, not pricey enough to put off applicants
It needs to decide how to balance front-loading and
back-loading – whether to make the unitary patent
cheap to apply for but expensive to maintain, particularly in
the latter part of its life when a maintained patent has proved
its commercial worth.
The decision makers, however, have an additional issue to
consider. They need to decide what cut member states will
receive from the renewal fees payable on unitary patents.
Article 13 of the EU Regulation on the unitary patent
concerns "distribution" of fees: the principle is that the EPO
keeps 50% of renewal fees and the other 50% is shared around
national offices based on "fair, equitable and relevant
The Regulation says this requires consideration of the
number of patent applications; the size of the market (while
ensuring that each participating member state gets something);
and compensation to those participating member states whose
official language is not English, French or German, where
patenting levels are low, and which joined the EPO relatively
That offers plenty of scope for politicking and horse
trading between members of the EPO. Few IP owners are likely to
mind much how they do it ("they should do what they want," one
patent attorney told me this week). But they do care about the
overall level of fees that will be levied on unitary patents.
Many would-be users are adopting a wait-and-see approach to the
new system – the danger is, of course, that this could
result in lots of people waiting and very little to see.
An attractive fee structure is important to win over unitary
patent sceptics. Although member states may be tempted to set
the fees high to ensure that they get a decent cut of whatever
distribution arrangement they finally agree, there could be
very little take-up. If so, a lot of energy will have been
spent with little to show for it.