"Unitary patent" and court system - Urgently needed: A legal basis for the opt-out fee

22-07-2015 Print this page
B913929

Ingve Stjerna (Rechtsanwalt, Düsseldorf), “Unitary patent“ and court system - Urgently needed: A legal basis for the opt-out fee

"As is well known, apart from the “unitary patents” the competence of the Unified Patent Court, would also cover the “classical” European patents, i. e. those without “unitary effect”, as well as respective applications, including those which were granted or applied for prior to the entry into force of the Agreement on a Unified Patent Court (UPCA) (Art. 3 lit. c) and d) UPCA). However, Art. 83 UPCA allows excluding them from the competence of the Court (so-called “opt-out”), after which the national institutions remain competent insofar.

The proprietor or the applicant of such European patent (or a respective supplementary protection certificate) which has been granted or applied for prior to the lapse of the transitional period of seven years (Art. 83(1) UPCA) can exclude the exclusive competence of the Unified Patent Court under Art. 83(3) UPCA. This applies to European patents granted or applied for prior to the entry into force of the UPCA as well as to those granted or applied for af- terwards (and until the end of the transitional period in Art. 83(1) UPCA). An executed opt-out can be withdrawn under (Art. 83(4) UPCA). As is known, it is planned to charge a fee for the opt-out as well as for its withdrawal (afterwards uniformly referred to as “opt-out fee”). In the most recent “consultation document” of the Preparatory Committee a fee of EUR 80.00 is suggested for each. Already for reasons of constitutional law, however, more important than this amount is the question whether a fee can be charged at all, namely whether a legal basis exists for this."

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