tag:blogger.com,1999:blog-2934262217555039098.post7122756682531856152..comments2022-12-13T11:15:51.769+01:00Comments on DeltaPatents Unitary Patent blog: Draft proposal unified patent court fees availableJelle Hoekstrahttp://www.blogger.com/profile/06066000039386452752noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-2934262217555039098.post-24383914036143323132015-05-14T19:38:03.960+02:002015-05-14T19:38:03.960+02:00According to Rule 25 of the UPC Rules of Procedure...According to Rule 25 of the UPC Rules of Procedure (17th draf), if the statement of defense asserts that the patent is invalid, it "shall include" a counterclaim for revocation. So, as I understand it, the defendant either files a counterclaim for revocation and pays the fee (Rule 26) or must accept that the patent is considered to be valid. (In the latter case he would probably still benefit if the EPO, or the UPC in a parallel case, revokes the patent.)<br /><br />What may save the innocent infringer of a plainly invalid patent is that the successful party may request a cost decision, which also covers court fees. But in cases that are not so clear a small defendant might prefer to pay for a license rather than risk having to pay the court fees and, likely worse still, the representation fees for both sides.<br /><br />The other way around is interesting as well: if a small party owns a patent and is confronted with a revocation action, things could get quite costly if the party does not eventually win the case. So it might be safer to give up the patent immediately, but that might still not be enough to avoid a cost decision which might not only cover court fees, but also the costs of preparing the revocation action.<br /><br />Of course I might just be showing my lack of familiarity with national infringement and revocation proceedings. UPC court fees might be higher, but for the rest not that much might change?<br /><br />Who can start a revocation action? "Any person" as in Art. 99 EPC? Or is some kind of legitimate interest required?<br /><br />Does Rule 30(1)(a) not conflict with Art. 138(3) EPC as regards the possibility of amending the description?<br /><br />Btw, I hope some professional legal writer will eventually clean up the linguistic mess that is now the draft Rules of Procedure of the UPC. For example R. 30: "of the claims of the patent concerned and/or specification". But almost everything is much too wordy and convoluted.Anonymousnoreply@blogger.com