Tuesday, June 20, 2017 Battistelli: “nobody knows today” (what will happen to the London court)

Battistelli speaks to award winner Adnane Remmal

At the occasion of the European Inventor Award 2017 (15 June 2017 in Venice), Benoît Battistelli, president of the European Patent Office (EPO) spoke to reporters about the unitary patent (Euractive reports).

According to him the Unified Patent Court is “is not an EU agency”,and so the London location of the court's central division would not have to be relocated to an EU member state after Brexit is complete. Whether that would be politically acceptable  “would be another issue” and “It will depend on the outcome of the negotiations”. He conceded that “nobody knows today” what will happen with the court.

According to the article we do have a new start date though: early 2018.

I'm not sure I'd bet on that. Let's say that early 2018 means March 2018, and assuming an 8-month lead time between ratification and start, this would mean that by August 2017 the UK and Germany have each ratified the UPC agreement.  Given the politically sensitive issue for the UK and the requested delay of the German constitutional court, it seems a bit optimistic that both will be resolved in two months time.

Photo from the Award ceremony photo gallery at EPO. 

Monday, July 18, 2016 Battistelli considers unitary patent with UK a 'best case scenario'

Battistelli, the EPO President, discusses two possible scenario's for the future of the unitary patent after the UK voted to leave the EU in the Brexit referendum, in his Blog 'The future of the Unitary Patent package'.

According to Battistelli, "In the best case scenario, the UK could go ahead as soon as possible with the ratification of the UPC Agreement. This would allow the UK afterwards, in its EU exit negotiations, to obtain its continuous participation both in the Unified Patent Court and the Unitary Patent." This option follows the scenario proposed by Hoyng, that we discussed earlier on this Blog. Eplit, the European patent litigator association,  has sent a letter to  Lucy Neville-Rolfe, Minister for Intellectual Property, urging here to take this route and ratify the Agreement.

The advantages are clear, the unitary patent can go ahead as planned, and the UK buys time at least until their formal exit out of the EU on how to proceed. In the meantime a solution can be found that finds a place for the UK in the unitary patent. Either through a creative interpretation of the Agreement on a unified patent court (namely, you should be a EU member to become a participant not not to stay  participant) or in the form of an amendment or side-agreement. The latter options would have my preference, as they give more legal certainty.

In an article at Out-Law, Deborah Bould considers this approach unlikely. "It seems politically unrealistic to suggest that the UK ratifies the UPC Agreement now, to help get the unitary patent system off the ground, and then tries to negotiate to stay in as part of the UK’s exit terms," Bould said. At first glance, it does indeed seems illogical to ratify an agreement that further limits national sovereignty in favor of a pan-European court  just after a brexit vote. On the other hand, a UK in the unitary patent fits nicely in the 'soft brexit' model, in which a close relationship with the rest of the EU is maintained.
 
The alternative considered by Battistelli is to amend the Agreement and continue without the UK. This would give a unitary patent in which the UK is absent, but which still has countries like Germany, France, Italy and the Netherlands, that hopefully will make this 'unitary patent light' sufficiently attractive to be a viable option.

Bould offers yet a further alternative in which the Agreement on a unified patent court is renegotiated and opened up to all EPC member states who are not EU states. I presume Battisteli's option would be easier to obtain, but Bould's suggestion has the advantage that  states like Norway, Switzerland and Turkey could also join the unitary patent. I'm not sure though if it is necessary to codify access to the unitary patent to all EPO states. If the UK can be included in the unitary patent through a kind of extension agreement, then I do not see why a similar agreement can't be made with other EPO member states.
 
In any case, any tampering with the Agreement would take time, and delay the unitary patent, but that is a reality that seems inevitable in any scenario.

Photo by Clker-Free-Vector-Images via Pixabay under a CC0 license (no changes made). 

Friday, June 19, 2015 EPO favours lower renewal fees

 Last Monday  the Committee on Legal Affairs of the European Parliament had an 'Exchange of views the President of the European Patent Office, Benoît Batistelli' (here is the agenda of the meeting).

I haven't seen meeting notes of that meeting, but according to Intellectual Property Watch
the EPO favors the so-called Top 4 proposal for the renewal fees. Currently discussions around the unitary patent renewal fees focus on two proposals made by the EPO: the "Top 4" and the "Top 5" proposal.

In the "Top 4" and "Top 5" proposal, the renewal fees are based on the current renewal fees that would be due for a validation in four, or five countries respectively. In the Top 5 proposal there is a reduction for some patent proprietors, in particular SMEs.

The Top 4 proposal has lower renewal fees and fewer rules; There is no need to keep track if an applicant is still small enough to fall under the SME definition. Apparently, it is also what the EPO favors.

Wednesday, March 11, 2015 Battistelli makes proposal for unitary patent renewal fees

The unitary patent changes the way renewal fees are paid.

If you choose for classic EP validation, then after grant you cease to pay renewal fees to the EPO, but start to pay national renewal fees.  In case of a unitary patent, then after grant you will continue to pay renewal fees to the EPO, but do not start to pay national renewal fees. [Except of course for non-participating countries like Spain or Italy, where one would still do national validation and pay a national renewal fee].

One of the main open questions regarding the unitary patent is the level of the renewal fees.
 
Discussions about the renewal fee have been ongoing for some time, but are not public. Fortunately, IpKat has now leaked portions of a document  "Proposals for the level of renewal fees for European patents with unitary effect" that, apparently, Battistelli,  the president of the EPO, has sent to the Select Committee. I haven't seen the document myself yet, and am basing myself on what IpKat shared with us.

The first impression is that the document is not very surprising. For a long time, it was expected that the level of the unitary renewal fee would be based on the sum of about 4 or 5 national renewal fees. This document confirms that rumor. 

For patent proprietors who have license income based on the size of the economies their patents cover, it seems the unitary patent could be a good deal. For the price of a medium sized portfolio (4 or 5 validated countries) the area covered will be much increased.

In the document, two detailed plans for the unitary renewal fee are proposed. Both proposals have the same structure, in three phases:

Years 3 to 5:                 same as the current EPO renewal fees for patent applications (the "internal renewal fees (IRF)"

Years 6 to 9:                 a transitional level between the IRF level and the year 10 level

Years 10 and beyond:  a level equivalent to the total sum of the national renewal fees payable in the states in which European patents are most frequently validated (TOP level).

It is in the TOP level where the two proposals diverge. 

In a first proposal the Year 10 onwards level is based on current renewal fee levels for FOUR European countries (TOP 4 level). In the second proposal the Year 10 onwards level is based on current renewal fee levels for FIVE European countries (TOP 5 level) but with a reduction for certain categories of patentees, namely SMEs, natural persons, non-profit organisations, universities and public research organisations.

The following table gives the level of the proposed fees. The table is copied from the IpKat posting:

The first thing to notice is that both of the proposed renewal fees (Top4 and Top5) are actually lower than the EPO's current internal renewal fees for the first 10 years. So getting a grant within these first 10 year would lower your renewal fee cost compared to the renewal fee you would have to pay if your application was not yet granted. 

To put these numbers into perspective I compared the renewal costs for years 6 and 15 for traditional validations of three different sizes to a unitary patent using the TOP4 or TOP5 fee level.

The three validations that I've compared consisted of the following countries: Large (13 countries DE, UK, FR, AT, NL, BE, LU, IE, SE, DK, FI, GR, PT), Medium (5 countries: DE, UK, FR,NL, SE) and Small (3 countries: DE, UK, FR).

For the year 6 renewal fee, I get the following numbers:

Large EP validation:    1585

Medium EP validation: 651

Small EP validation:    309

Unitary Patent, Top4:   855

Unitary Patent, Top5:   880

For the year 15 renewal fee, I get the following numbers

Large EP validation:     7482

Medium EP validation: 3307

Small EP validation:     1906

Unitary Patent, Top4:    2830

Unitary Patent, Top5:    3300

As expected, for large validations the unitary patent is less expensive, while for a small validation the unitary patent is more expensive. The more interesting case is the medium validation. For the year 6 renewal fee, the unitary patent is more expensive, but for the year 15 renewal fee the TOP5 unitary patent is almost exactly the same. 

Agent costs and translation costs have not been taken into account. My first impression is that these proposals are not that bad. Especially, the TOP4 scenario seems like a good deal. Even compared to a modest portfolio, you get coverage for a much large area for the same amount of money. On top of this, you save on translation and administrative overhead.