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| "Come in", called the patent attorney |
Picture the scene: a bright, comfortable yet functional office in a modern block at the centre of Anytown, England. A patent attorney sits behind his desk, awaiting the arrival of a potential new client. The door knocks. Swiftly checking that all is in order, he clears his throat, adjusts his tie and practises his best "how-can-I-help-you?" welcome. "Come in!" he calls. The door opens. In walks an inventor, brandishing his iPad,* full of eager expectation and anticipation of the joys of a shiny, new and totally affordable patent [*
other models of tablet computer are available] "How may I help you?" asks the patent attorney. The ensuing dialogue is recorded below:
Client: [Confidently] I would like one of those new unitary patents I have read about. I hear they will be only a fraction of the cost of the old ones.
Patent attorney: you would think so, wouldn't you. But sorry, no -- the cost up to grant will be exactly the same.
Client: well, it says here that the cost will be a single payment of 5,000 euros. So perhaps there are no renewal fees, then?
Patent attorney: er, no. There will still be renewal fees paid every year. In fact the European Patent Office plans to apply them even earlier than some countries do at the moment.
Client: [now a little less confidently] well, at least the renewal fees will be much cheaper than for a European patent, surely.
Patent attorney: well, it depends. If you currently validate your European patent in only the largest countries -- United Kingdom, France, Germany, Spain and Italy -- the unitary patent will be more expensive. According to the current proposal from the EPO, the level of renewal fees will be pegged to the level of four or five countries which participate in the unitary patent system. However, Spain and Italy will not be in the system. This means that if you want patent protection there too, you will have to pay renewal fees there separately. And the unitary patent renewal fees will be higher than the sum of UK, France and Germany currently.
Client: so is the unitary patent system ever cheaper?
Patent attorney: yes, if you currently validate your European patent in all available states, then the renewals fees for the unitary patent will be significantly cheaper.
Client: a fraction of the cost?
Patent attorney: [thinking to himself how strange it is that people say "a fraction of the cost" when they mean something really cheap, forgetting that there are very large fractions too ...] well, I wouldn't quite go that far. 38 countries have signed up to the European Patent Convention. The unitary patent will apply, as things currently stand, to at most 25 of them, but in the early years it could be as few as 13. So you will effectively get from 13 to 25 countries for the price of 4 or 5. But you will still have to pay for between 13 and 25 countries that are not (yet) in the unitary patent system, either because they are not EU Member States, or they did not yet ratify the agreement.
Client: it says that the 5,000 Euros is a "single payable fee". This must surely mean that there will be no more messing around with a filing fee, search fee, designation fee, examination fee, grant fee?
Patent attorney: still no, I am afraid. The pre-grant procedure is identical to the current European patent system, so you pay the same fees up to grant, at the same time and under the same conditions as currently.
Client: [more in hope than in belief] but surely they are abolishing the excess pages fees and the excess claims fees -- I really hate paying those.
Patent attorney: no, those are staying too.
Client: [increasingly bewildered] so what is the "lessened financial and administrative burden" that I read about?
Patent attorney: [who has absolutely no idea] I have absolutely no idea.
Client: oh, that’s a shame. In that case, why don't I just not bother with a European patent and go for one of those American patents instead, because I hear they’re traditionally a good alternative.
Patent attorney: well, that really wouldn't be a good a idea because then you would have no patent protection in Europe, which is where you told me 70% of your business is. You really need both.
Client: it says that the Unitary Patent Package will be good for SMEs, like my company. From what you have said, I am struggling to see it.
Patent attorney: so am I. In fact, the economic analysis undertaken of the Unitary Patent Package by Poland concluded that the Unitary Patent would be bad for Poland, primarily because it would disadvantage Polish businesses by hugely increasing the number of patent rights owned by foreign companies that would be extant in Poland. That logic would appear to apply generally, and especially for SMEs.
Client: does it help European businesses at all?
Patent attorney: [sadly shaking his head] well, as far as I can see, any benefits of the system apply equally to non-European companies, but the disadvantages will disproportionately affect European ones, particularly the potential rise in third party patent rights that they have to consider, and especially in the countries where fewer European patents are currently validated.
Client: [looks again at his iPad dubiously] this piece does not seem very accurate, but it is on the website of the European Commission. Aren't they the people who put forward this legislation in the first place?
Patent attorney: yes.
Client: well, shouldn't their information be more trustworthy?
Patent attorney: you'd think, wouldn't you. But on the Unitary Patent Package it seems not.
Client: anyway, do I have to use the unitary patent system to get access to the Unified Patent Court?
Patent attorney: no, the Unified Patent Court will have jurisdiction over classical European patents as well, unless you opt your patent out of its jurisdiction. Even if you don't opt out, jurisdiction will be shared with national courts for a transitional period that could be quite long.
Client: it says here that the Unified Patent Court has clear jurisdiction over infringement disputes. So it is a single court then?
Patent attorney: [wondering how much time he'd need in order to give a full answer to that question, and how he could ever bill for giving it ...] well, no actually it is quite complicated. There is a central division with three sections, one each in Paris, Munich and London, and as many local or regional divisions as member countries, or groups of them, want to set up.
Client: well surely I would only ever get sued in my local division?
Patent attorney: no actually. If you sell products abroad, a patentee could sue you in the local division where the alleged infringement occurred.
Client: but at least the language of proceedings would be English?
Patent attorney: no, it might be the language of the country of the local division or the language of the patent.
Client: oh dear, that sounds worrying. But litigation at the Unitary Patent Court will be cheaper than European patent litigation currently?
Patent attorney: it is a bit early to say yet. We don't even know the level of the court fees. It will certainly be cheaper than parallel litigation in lots of countries. But probably not cheaper than a single local litigation.
Client: [beginning to clutch at straws] well can I still use the IPEC? I do like the costs cap that applies there.
Patent attorney: you will still be able to use the IPEC for classical European patents during the transitional period, and opted out patents, yes, but not otherwise.
Client: will the Unified Patent Court operate a costs cap?
Patent attorney: well, the current rules of procedure envisage a "scale of recoverable costs which shall set ceilings for such costs by reference to the value of the dispute", so something similar, yes.
Client: [fighting back the tears and almost wishing he wasn't an inventor after all] well I have to say that this is all much more complicated than I had hoped from what I read, and I am rather disappointed. But thank you for explaining it to me.
Patent attorney: [fighting back the tears and almost wishing he was a Patent Examiner after all] you are welcome.
