II. Safety net

Yes

Under Article II.7(1) LIPT, renewal fees under Section 17 PL are payable for a European patent effective in Germany, but only for years following the one in which the mention of its grant was published in the European Patent Bulletin. The fees' due dates and payment deadlines are governed by the Law on Patent Fees (LPF).

Under Section 7(1), first sentence, LPF, they must be paid by the end of the second month after the due date. Failing that, they can still be paid, together with a late-payment surcharge, up to the end of the sixth month after the due date (Section 7(1), second sentence, LPF). So German law already offers a safety net for late payment of renewal fees.

The fees are payable for the year ahead, and their due date is normally prescribed (by Section 3(2), first sentence, LPF) as the last day of the month containing the anniversary of the filing date.

Against this backdrop, a new Article II.15(3) LIPT as per the accompanying law will be added to ensure that European patents can remain in force if the EPO or UPC – possibly after lengthy proceedings – refuses a request for unitary effect, and without the new rule the deadline for paying the renewal fee would have expired.

Under the new rule, if a request for unitary effect is refused, the due date for renewal fees will depend on when the decision of the EPO or – in the event of litigation under Article 32(1)(i) UPC Agreement – a final decision of the UPC is notified, unless a later one is available to the patent proprietor under Section 3(2), first sentence, LPF.