Dr. Ingve Björn Stjerna, LL.M.

EU Patent Reform: Urgently needed: A legal basis for the opt-out fee,

Article on implications from constitutional law as to the planned fee for an opt-out under Art. 83 UPCA (Published on 21/07/2015)


Contents:

A popular topic of discussion are currently the fees to be charged for the “unitary patent” and for the proceedings at the Unified Patent Court. As is known, as part of the latter it is planned to raise a fee for the opt-out from the competence of the court and for the withdrawal of such application. However, the question is where the legal basis for such opt-out fee can be found. From the German perspective, the existence of such legal basis is a basic requirement under constitutional law for the admissibility of charging a fee, as it encroaches upon a property position being protected by a fundamental right. This protection can also apply to European patents and patent applications which can be made subject of an opt-out, so that the planned opt-out fee needs to satisfy the requirements of German constitutional law insofar. The following article assesses whether this is the case.

  • Download English version (article of 21/07/2015, PDF)
  • Download German version (article of 21/07/2015, PDF)


Sources used:

  • Link to the 17th draft of the Rules of Procedure of the Unified Patent Court of 31/10/2014 (PDF).
  • Link to the “Consultation Document” on the “Rules on Court fees and recoverable cost” of 05/05/2015 (PDF).
  • Link to the document “Comprehensive Digest” on the “Responses to the Public Consultation on the Rules of Procedure of the UPC” of 31/01/2014 (PDF).
  • Link to the article Stjerna, “The European Patent Reform – Advocate General’s Statements of Position – Superseded by reality” (PDF).
  • Link to the article Stjerna, “The European Patent Reform – Compatible with the German Constitution?” (PDF).


Further material:

  • Link to the post Stjerna, “The European Patent Reform – The »forgotten« documents of the Preparatory Committee of the Unified Patent Court”.
  • Link to Stjerna, Official information obtained under the German Federal Freedom of Information Act.
  • Link to Stjerna, The Parliamentary History of the European “Unitary Patent” (Tredition 2016), the foreword can be viewed here.


If you wish to support my work, you can do so here. Many thanks!

Archive