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The fees for the Unified Patent Court have also been consulted on here . Responses on that consultation are due to be sent to the secretariat by 31 July you are running out of time if you want to comment. Details of how to comment are here . Since the UPC Has to cover the costs of setting up an entirely new pan-European court, it wasn't surprising to find that they wanted to set pretty high fees. We are expecting a quality and responsive service. We are expecting to be able to see documents and to be able to monitor cases online in a 21st-century way unlike our national court systems. All this is expensive. It may be so expensive that modest businesses with modest disputes cannot even begin to think about using it. This is something of a shame as the Intellectual Property Enterprise Court in the United Kingdom has shown that there are modest patent disputes that need access to justice. Many more are I understand litigated in Germany. Since it will clearly take some time for big Pharma to get comfortable with the UPC, it seemed to me that it would have been quite smart for them to take on some of these more modest cases to get the system moving efficiently. I'm suggesting that €11,000 is too much for a modest business on day 1 to start their claim - perhaps not a great deal too much.
However a €20,000 fee for a counterclaim for revocation is really unfair. It means any modestly sized defendant is denied what is usually their best defence. I went away from that consultation reconciled to the fact that I wouldn't be seeing any UPC work at all in my lifetime.
Now we come to the enhanced fees that are likely to be applicable in the Intellectual Property Enterprise Court. On this occasion, the proposal is to lift the maximum fee from £10,000-£20,000. If there are any Russian oligarchs left wishing to litigate in London, then it's all well and good that they should pay. What I would like to see is a proper fee established for unquantified damages claims. Most intellectual property actions cannot be valued readily on day one. We need to recognise that in the fee structure and provide for an initial fee and a damages dependent court fee that is paid at the end of the day.
It would also be nice if the appropriate "other remedies" fee applicable in IPEC could be definitively set. At present whether you are charged the High Court rate or the County Court rate is purely at the whim of the counter attendant. The proposal is that those fees rise to £528 and £308 respectively. In my opinion that is actually a tad too low in IP cases where no other financial remedy is sought (but not too low if you are also paying £20,000 for unquantified damages). Given that in a typical trademark case the costs of pursuing damages are likely to be disproportionately greater than the damages ordered in cases which have been started early, not making a money claim is pragmatic and at present that is something of a bargain.
Application fees are also set to rise. The proposal is that £50 becomes 100 for uncontested applications and £155 becomes £255 if contested. The consultation document says that they do not anticipate that the increases will have any significant impact on demand. This is, of course, looking at civil proceedings across the board. In intellectual property cases, it might be a good idea to decrease the demand for general applications.
Hopefully the CIPA Litigation Committee and the Law Society IP committee will be looking at preparing a response to draw attention to the IPEC issues.