What is a “fair” renewal fee for a unitary patent?
Council working document 13752/08 and 13752/08 Cor 1 in
October 2008 published eight scenarios for possible renewal fees, these
scenarios ranging from lifetime renewal fees amounting to €36152 to €89902 for
the (then) 27 potential countries.
Even the lowest hypothesis is 50% more than
the accumulated lifetime fees for DE, FR and GB. A 50% increase in fees for a 90% increase in
covered population and 66% increase in covered GDP does not sound a bad
bargain.
The average of the eight scenarios had lifetime renewal fees
amounting to €60735, a 153% increase in fees. Not so good a bargain. Anything
above that average would be extortionate and probably guarantee a low take up for the unitary patent.
However the proposed methods for the calculation of renewal fees
do not take into account the significantly different value for money of
national renewal fees. As can be seen
from the following chart, there is an extremely good fit between value for
money and population.
Looking in more detail, the following table shows a distinct
difference in value for money between the larger EPC countries [Germany, Turkey,
France, United Kingdom, Italy, Spain and Poland – only three of which might (must)
participate in the unitary patent] and the rest. The graph shows both cost per million population and cost per billion GDP [pre-crash figures I fear - and I have left out Monaco because that is ridiculously poor value].
So far as the applicant is concerned, value for money would best be represented by
fees giving roughly the same cost per million population as the cost for Germany, France
and United Kingdom (or even less as Germany has very high fees at the end of patent term).
The average for Germany, France and United Kingdom works out at
about €115 per million population. With a total potential population of about
360m for those countries that might yet sign up for a
unitary patent, this gives total lifetime renewal fees of about €41,000, around the lower end of the Council estimates.
What is fair for participating states?
One’s first thought would be that the distribution key for
renewal fee income should be simply based on population. However the gross
overcharging of many countries would make that a significant drop in per patent
fees.
But what do not appear factored into the Council working
documents are the difference in validation and maintenance rates from country to
country. Not surprisingly, those countries where patents are not good value
have lower validation and maintenance rates than those where patents are good
value.
Roughly, the smaller the country, the lower the validation rate and the
earlier patents are abandoned.
Applicants are not stupid and value for money is a major factor in deciding whether to validate or maintain a patent. A common strategy is to reduce the number of validations towards the end of patent life. So getting a small slice on a lot of unitary patents
may be of better value to some countries than getting a big slice on a few bundle
patents.
Of course politics intervenes, and it will be interesting to see what is eventually decided.
