Brussels, 31 october 2021 — FFII says the proposed Unified Patent Court is an SME killer with its super-expensive court fees of 20.000EUR. No small company will be able to defend itself if it is accused of violating a patent, the proposed UPC court fees will deny access to justice for small companies, the cost being 100X more expensive than the current situation in the different countries.
The claim that the Unitary Patent makes the system better for SMEs is a gigantic lie. Europe is committing an economic suicide by making sure the Court is not accessible to small companies.
Last week, business assocations members of BusinessEurope from Spain, Portugal, Hungary and Czech Republic refused to endorse a call to ratify the Unified Patent Court Agreement (UPCA). Those business associations mostly share the same position that the UPC court fees of 20.000EUR (validity) and 11.000EUR (infringement) are way too high, and will deny access to justice for SMEs:
“The Confederation of Industry of the Czech Republic thus demands […] to reduce the court fees, especially the fee for patent abolition’s proposal, which is set at 20 000 euros. If a subject wants to abolish an EU patent on the territory of the Czech Republic now, the fee is approximately 200 times lower.”— SPCR.CZ: The proposed level of fees is too high for the Czech companies, the Confederation states https://www.spcr.cz/en/23-aktualne/statesment/8743-confederation-on-the-unified-patent-court-fees
This is also the analysis of the Portuguese Association of Consultants in Intellectual Property (ACPI):
“UPC rules are unbalanced in favor of patent holders and costs of European patent litigation in the UPC will be very high and unaffordable for companies resident in Portugal, jeopardizing the right to a fair and equitable process.”— ACPI: Patente Europeia de Efeito Unitário e Tribunal Unificado de Patentes violam princípios básicos da UE e prejudicam empresas Portuguesas http://www.acpi.pt/wp-content/uploads/2014/01/ConclusoesVIForum.pdf
The same position is also shared by the Spanish Confederation of Employers and Industries of Spain (CEOE):
“Litigation under the UPC will be unaffordable for SMEs. Just have a look at the very high court fees that have recently been proposed by the UPC Preparatory Committee. The fee for invalidation, for example, would be 20.000 euros. On top of that, you have the costs of lawyers, translations, etcetera.”
— Kluwer Patent Blog: Despite the defeat at the CJEU, Spain will not join the Unitary Patent system http://patentblog.kluweriplaw.com/2015/06/17/despite-the-defeat-at-the-cjeu-spain-will-not-join-the-unitary-patent-system/
Even worse, in some countries small companies can call for Legal Aid if they don’t have the means to pay the expensive lawyers fees, and the UPC has scrapped that support for SMEs, and restricted to physical persons only (individuals). For example, in Austria, legal aid is available for small companies.
Benjamin Henrion, President of FFII, says: “The Unified Patent Court court fees of 20.000EUR will prevent small companies to defend themselves, especially against patent trolls, which have most of the time very weak patents. The argument that the UPC is ‘cost-cutting’ is a giant lie and does not fly if a simple case is 100X times more expensive than a national case. Court fees in most member states are between 80EUR and 600EUR, except for Germany.”
He finishes: “Like for the European Electricity Crisis, Europe is designing a patent court system which is the most expensive, a disaster for small companies that will be denied access to Justice.”
- BusinessEurope: European Business Community calls for the rapid ratification and entry into operation of the Unitary Patent system – “This paper and the positions reflected in it are not supported by the Spanish Confederation of Employers and Industries (CEOE), Confederação Empresarial de Portugal (CIP), the Confederation of Industry of the Czech Republic (SPCR) and BusinessHungary (MGYOSZ)” https://www.businesseurope.eu/sites/buseur/files/media/position_papers/legal/2021-10-12_joint_business_statement_unitary_patent_unified_patent_court.pdf
- WKO: Consultation on the Rules of Court fees and recoverable costs, Position Paper of the Austrian Economic Chamber: “In Austria, legal aid is granted when a party is not able to pay the costs without interference of his reasonable maintenance and there is no evidence that the enforcement is malicious or without a reasonable chance. […] We do not consider it fair that the granting of legal aid [in the UPC] is subject to natural people.” https://news.wko.at/news/oesterreich/STN-WKOe-Europ-Patentgericht-Gerichtsgebuehren.pdf
- Kluwer Patent Blog: Legal and financial concerns: Czech Republic will not ratify UPCA any time: “Typically, in response the sued company could be advised to demand cancellation of the Unitary Patent by means of a counterclaim but in that case, it will be required to pay a court fee of EUR 20,000. Many Czech companies/individuals will simply not be able to afford to pay such high court and related attorney fees even in cases where they are convinced that they do not infringe a patent or that a patent can be successfully invalidated. As consequence, purely because of the costs, they would be prevented from defending themselves in the proceeding at the UPC.“ http://patentblog.kluweriplaw.com/2019/09/13/legal-and-financial-concerns-czech-republic-will-not-ratify-upca-any-time-soon/