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 (21/07/2015)

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)


Resources:

  • 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)