D. Renewal fees for Unitary Patents
II.Additional six-month period for paying renewal fees
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103If a renewal fee is not paid in due time, it may still be paid within six months of the due date, provided that an additional fee is also paid within that period (Rule 13(3) UPR). This provision is identical to the corresponding EPC provision in Rule 51(2) EPC. The amount of this additional fee is laid down in Article 2(1), item 2, RFeesUPP as 50% of the belated renewal fee. Where a renewal fee is reduced in accordance with Article 3 RFeesUPP (licences of rights), the 50% additional fee is to be calculated on the basis of the reduced renewal fee.
104If a renewal fee for a Unitary Patent has not been paid by the due date, the EPO will, as a courtesy (and in line with its current practice with respect to renewal fees to be paid for European patent applications under Article 86 EPC), inform the proprietor as soon as possible of the option of paying the fee, plus an additional fee, in the six months following the due date. This six-month period, however, will begin to run immediately from the due date.
105If the renewal fee is not paid within that additional six-month period, the EPO will send a communication under Rule 112(1) EPC (which applies mutatis mutandis pursuant to Rule 20(2)(d) UPR), notifying the Unitary Patent proprietor of a loss of rights. Such a communication does not constitute a decision within the meaning of Article 32(1)(i) UPCA, so an action against it cannot be brought before the UPC.
106Failure to pay the renewal fee within the additional six-month period can be redressed by re-establishment of rights under Rule 22 UPR. If the finding of the EPO causing the loss of rights is inaccurate, a review of the finding can be requested by applying for a decision under Rule 112(2) EPC (which applies mutatis mutandis under Rule 20(2)(d) UPR). An action against that decision can be brought before the UPC.
107The payment periods are calculated in accordance with Rules 131 and 134 EPC (see Rule 20(2)(g) UPR) in line with existing EPO practice. So, if the due date is a day on which the EPO cannot receive mail within the meaning of Rule 134(1) EPC (which applies mutatis mutandis under Rule 20(2)(g) UPR), the due date itself will not change, as it is not a period which can be extended, but instead the last day for valid payment will be deferred to the first working day thereafter.
108Furthermore, the six-month additional period under Rule 13(3) UPR starts on the last day of the month referred to in Rule 13(2) UPR, even if the EPO cannot receive mail on that date because of holidays, a mail interruption or a strike. However, Rule 134(1) EPC will apply to the expiry of the six-month additional period, so that the last day for valid payment will again be deferred to the first working day thereafter (see Rule 20(2)(g) UPR).
109When calculating the additional period under Rule 13(3) UPR, the internal rules of the EPO, as established by decision J 4/91 of the Legal Board of Appeal (see OJ EPO 1992, 402), are to be applied. It follows that the six-month period for the payment of a renewal fee with an additional fee expires on the last day of the sixth month after the due date (in the light of Rule 13(2) UPR) and not on the day of that month corresponding in number to the due date. Thus, the calculation is to be made from the last day of the month to the last day of the sixth month thereafter (e.g. if the due date is 28 February, then the end of the six-month period will be 31 August and not 28 August).
110Non-payment of the renewal fee and of any additional fee will result in the lapse of the Unitary Patent (Rule 14(1)(b) UPR). In such cases, it will be deemed to have lapsed on the date on which the renewal fee was due (Rule 14(2) UPR).