It is a truism that newly founded, highly innovative companies are particularly dependent on the protection of their intellectual property, but often lack the budget to ensure this in a comprehensive manner. This is doubly fatal, as IP is usually the only asset that start-ups have and is an indispensable pledge in financing rounds. Conversely, large and financially strong companies are motivated to cleverly build patent networks around such solitary patents, which at the end of the day secure them almost free access to these technologies, for example via cross-licenses. Reduced access to patent protection for this group of companies is therefore an old, but so far little-heard demand.
Fee increase (1)
It is therefore worrying to see the biennial round in which the EPO adjusts its fees to the current economic situation and thus regularly tightens the purse strings a little more. On April 1, 2024, it was time again and this time the increase of the office fees lasted only 12 months.
In detail: With the exception of the filing fee, the opposition fee and the appeal fee, the procedural fees were adjusted by 4%. As the EPO press office points out, this year’s and last year’s combined adjustment is more than 7% below the real rate of inflation, which – according to the Office – was only made possible by the efficiency gains of recent years. In order to adapt the structure of the internal renewal fees to the normal working rhythm of the EPO, six out of eighteen internal renewal fees were increased. In absolute terms, however, internal renewal fees have fallen overall since 2016, according to the Office.
Promotion of Small Entities
A fundamentally welcome innovation concerns measures to support small and medium-sized applicants in obtaining patent protection and marketing their inventions in Europe and around the world. These can be micro-enterprises, natural persons, non-profit organizations, universities and public research institutions. These „small entities“ receive a 30% reduction on all major fees in the patent granting procedure, provided they have filed fewer than five applications in the last five years.
These fee reductions complement the few existing support measures for small and medium-sized entities, namely
- a reduction in filing and examination fees if the European patent application or request for examination is filed in a language of a contracting state other than English, French or German;
- a lump sum to compensate for translation costs for the Unitary Patent and
- a reduced appeal fee.
A further innovation concerns the users of MyEPO: the registration of a transfer of rights is now free of charge in order to create further incentives for the use of the web-based online service. Some less necessary fees have even been completely eliminated.
Conclusion: Still waiting for the big hit
Whether the new fee increase after just 12 instead of 24 months can really be regarded as moderate is in the eye of the beholder. The decisive factor is which inflation rate is assumed here.
As far as easier access to patent protection for „small entities“ is concerned, however, the goal has been missed: unlike in the USA, for example, the fee reduction is not based on the number of employees, but on the number of patent applications filed. This is regrettable, as the limit of 5 patent applications practically excludes highly innovative start-ups, whose only capital is their IP, from funding. This unfortunately counteracts the aim to protect innovations early and comprehensively despite tight budgets.