EPO fees: Reduction possible for certain micro-enterprises from April 1, 2024

While many European Patent Office (EPO) fees will increase significantly with effect from 1 April 2024, the EPO has announced the possibility of a 30% reduction in filing and examination fees for micro-enterprises, natural persons, non-profit organizations, universities and public research institutions.

As is largely unknown, especially due to its low relevance, the EPO already offers fee advantages for "small business applicants". These include a 30% reduction in filing and/or examination fees in the case of an Art. 14(4) EPC scenario, i.e. where an application is filed in an official language of a Member State other than English, French or German. For such persons/organizations, a reduced appeal fee and a lump sum compensation for translation costs in connection with the Unitary Patent may also be granted. In practice, however, these reductions are very rare. 

Amendments have now been made to Rule 6 of the European Patent Convention (EPC) and Article 14 of the Rules relating to Fees in Decision CA/D 16/23 of December 14, 2023, which was published on the EPO website on January 31, 2024. In addition, new Rules 7a and 7b EPC were introduced. The amendments also apply to Euro-PCT applications that have entered the European phase.

As a consequence, a new status of "micro entity" will be introduced at the EPO. This new status applies to all of the above-mentioned companies, with the exception of SMEs. The "micro entity" status applies regardless of the nationality or domicile of the person/organization.

SMEs and micro-enterprises are defined in accordance with Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, published in Official Journal of the European Union L 124, p. 1. 36 of 20 May 2003. A definition for non-profit organizations, universities and public research institutions can be found in the EPO communication of 10.01.2014 (OJ EPO 2014, A23).

A "microenterprise" is therefore a company with "fewer than ten employees and an annual turnover or annual balance sheet of less than EUR 2 million". However, the EPO is not overly generous: microenterprises are only entitled to the fee reduction if they have filed fewer than five applications with relevant data in the five years prior to the relevant filing date for which the fee reduction applies. They must also remain a microenterprise as defined by the European Commission.

The reasons for introducing this requirement, namely that a highly innovative micro-enterprise is "allowed" only one discounted patent application per year (or five in one year and then "never again"), remain a mystery to the EPO. Furthermore, this rule effectively excludes non-profit organizations, universities and public research institutions.

The fee reductions apply to a large part of the regular EPO fees, including renewal fees (but only for the European patent application).

To qualify for "micro-entity" status, applicants must make a declaration to this effect to the EPO "at the latest at the time of the first reduced payment (Rule 7b EPC)". If there is more than one applicant for a particular application, each individual applicant must meet the requirements (Rule 7a(5) EPC), and if a European patent application is transferred, it is the status of the new applicant that determines whether the application qualifies for the reduction.

If the EPO establishes that a declaration on the applicant's status is incorrect, any fee is deemed not to have been paid and the application is deemed to be withdrawn (Rule 7b(4) EPC). This can be formally reversed, but then requires substantial additional fee payments.

Questions? Do not hesitate to contact us for further information.

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