At the end of February the Preparatory Committee for the Unified Patent Court announced the definitive proposal for court fees for the UPC, which is planned to start in early 2017.
The most striking change with respect to the previous proposal is that the costs for registering an opt-out are set to zero. The argument of the Preparatory Committee for doing so was, next to the many requests from the profession, that registration and checking for payment would complicate the opt-out procedure. This procedure now is a simple filling of the required data in the automated registration system of the Court.
The other fees of the Court follow the original proposal, to the effect that filing cases for infringement or declaration for non-infringement involve a fixed fee of €11,000 and a value-based fee that can vary between €0 and €325,000. The value of the case should be calculated in the simplest way, for example by reference to an appropriate licence fee. Filing a revocation action only is subject to a fixed fee of €20,000.
There will be a 40% reduction for SMEs or micro-entities if they meet certain criteria. Court fees may be partially reimbursed for simpler procedures, such as when cases are heard by one judge, withdrawn or settled.
The value of the case also determines the ceiling of the recoverable costs, which may be awarded to the winning party.
For both the recoverable costs and the court fees there is leeway for the court to adjust the levels to the nature of the parties. If and how the cost structure favours non-practising entities (patent trolls) is difficult to predict. Possibly, they inadvertently profit from the arrangements that are applicable to SMEs.
More details and a full disclosure of the complete cost structure can be found on the website of the Preparatory Committee unified-patent-court.org.
|Bart van Wezenbeek|
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