Article 8

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Citation: OJ EPO 2024, A8

Online publication date: 31.1.2024

EUROPEAN PATENT OFFICE

Information from the EPO

Notice from the European Patent Office dated 25 January 2024 concerning fee-related support measures for small entities

I. Introduction

1. By decision of 14 December 2023 (CA/D 16/23), the Administrative Council of the European Patent Organisation amended Rule 6 of the European Patent Convention (EPC) and Article 14 of the Rules relating to Fees (RFees) and adopted new Rules 7a and 7b EPC. These changes introduce a new fee reduction scheme specifically for micro-entities. The amendments will enter into force on 1 April 2024 and will apply to fee payments made on or after that date for European patent applications and Euro-PCT applications which have entered the European phase, irrespective of their filing date.

2. The new scheme aims to support the growth and development of smaller and less experienced European entities by making it easier for them to access the European patent system. It complements the existing support measures for small entities, and in particular the language-related fee reductions. The two fee-related schemes have been grouped under Rules 7a and 7b EPC and Article 14 RFees.

3. The present notice provides detailed information on applying for fee reductions under these schemes, and in particular under the new scheme for micro-entities. It replaces the notice from the EPO dated 10 January 2014 concerning amended Rule 6 EPC and Article 14(1) RFees (OJ EPO 2014, A23).

II. Scope of the schemes and definitions

4. The eligibility requirements for any language-related fee reductions, which are now provided for in Article 14(4) and Rule 7a(1) and (2) EPC (previously Rule 6(3) and (4) EPC), have not changed. A fee reduction can be requested by small entities which have their residence or principal place of business in an EPC contracting state and which file a European patent application or request for examination in an official language of that state other than English, French or German.1

5. The language-related fee reductions under Rule 7a(1) EPC are available to small entities, which include:

microenterprises;
small and medium-sized enterprises (SMEs);
natural persons;
non-profit organisations, universities and public research organisations.

6. By contrast, the new fee reduction scheme under Rule 7a(3) EPC applies to micro-entities only, irrespective of their nationality or domicile. This includes the above-mentioned small entities, with the exception of SMEs which are larger than microenterprises.

7. For the language- and micro-entity-related fee reduction scheme (Rule 7a(2) and (3) EPC), the definitions of SMEs and microenterprises in Article 2 of Commission Recommendation 2003/361/EC of 6 May 2003 as published in the European Union's Official Journal (L 124 of 20 May 2003, p. 36) in Annex 2 to this notice apply.

8. The other entities eligible for both the language- and/or micro-entity-related fee reductions listed in Rule 7a(2) and (3) EPC are defined as follows:

(i) "Non-profit organisations" are organisations which, by virtue of their legal form or statutes, are not permitted under the relevant law to be a source of income, profit or other financial gain for their owners, or, where they are permitted to make a profit, there is a legal or statutory obligation to reinvest the profits made in the interest of the organisation.

(ii) "Universities" are "classic" universities, i.e. higher education and research institutions as defined by the relevant legislation. However, comparable institutions, such as secondary or higher education establishments, are considered to be universities.

(iii) "Public research organisations" are entities such as universities or research institutes that are organised under public law and which, irrespective of the way they are financed, have as their primary goal the conduct of fundamental research, industrial research or experimental development and the dissemination of the results by way of teaching, publication or technology transfer. All profits must be reinvested in carrying out these activities, in the dissemination of the results or in teaching.

III. Fees concerned

9. The reduction of fees under both the language- and micro-entity-related support scheme (Rule 7a(1) and (3) EPC) is 30% of the relevant fee.

10. The language-related reduction for small applicants under Rule 7a(1) EPC applies to the filing fee, including any additional fees part of the filing fee, and the examination fee.

11. The reduction for micro-entities under Rule 7a(3) EPC applies to:

the filing fee, including any additional fees part of the filing fee;
the fee for a European search or the fee for a supplementary European search in the case of a Euro-PCT application searched by an International Searching Authority (ISA) other than the EPO;
the examination fee, and in addition, if applicable, the previously paid international search fee where the EPO acted as ISA;
the designation fee;
the fee for grant;
the renewal fees for the European patent application.

12. In the case of a Euro-PCT application searched by the EPO in its capacity as ISA:

The examination fee may thus be reduced twice under the micro-entity-related support scheme of Rule 7a(3) EPC: first by a reduction of the examination fee, and then additionally by a reduction of the effectively paid international search fee, i.e. the search fee net of potential refunds or reductions. (For example the international search fee might have been fully or partially refunded due to re-use of a previous search report drawn up by the EPO as ISA on an application whose priority is claimed; see OJ EPO 2019, A5.)
The reduction of the international search fee will apply as long as the examination fee is paid on or after 1 April 2024, even if the international search fee was paid before that date.

IV. Declaration requirement

13. Applicants wishing to benefit from the language- and/or micro-entity-related fee reductions (Rule 7a(1) and/or (3) EPC) must expressly declare their status, i.e. that they are a microenterprise, an SME, a natural person, or a non-profit organisation, university or public research organisation within the meaning of Rule 7a(2) and/or (3) EPC.

14. This declaration may be made by ticking the appropriate box(es) in the request for grant of a European patent (EPO Form 1001) or request for entry into the European phase (EPO Form 1200). Applicants wishing to make the declaration separately may also use EPO Form 1011, which is available in PDF format on the EPO website. In this case, the declaration must be filed at the latest when the fee concerned is paid.

15. Under Rule 7a(5) EPC, where there is more than one applicant, each must be an entity within the meaning of Rule 7a(2) or (3) EPC for the reduction of fees under the language- and/or micro-entity-related support scheme to apply.

16. Any change in the status of an entity under Rule 7a(2) and/or (3) EPC which has requested a reduction of fees must be notified to the EPO. Changes in the status of an entity which occur after the filing of the declaration will take effect only for the future and will not affect any reduced fees already paid. If a patent application is transferred, the fee reduction will continue to apply only if the new applicant is also eligible for language- and/or micro-entity-related support under Rule 7a(2) and/or (3) EPC. The new applicant must file a new declaration.

17. The EPO carries out random checks regarding the status of applicants during the course of the grant procedure. If these random checks give rise to reasonable doubts as to the veracity of a declaration, the EPO may request appropriate evidence.

V. Missing or incorrect declarations and applicable legal remedies

18. No reductions will be applied if the applicant fails to submit the relevant declaration at the time of payment. An applicant may always submit the missing declaration at a later date. However, the reductions will only apply to fees paid after the date of filing of the declaration.

19. Where a declaration concerning the applicant's status is incorrect, i.e. where the applicant has incorrectly declared itself to be an entity within the meaning of the language- and/or micro-entity-related support scheme (Rule 7a(2) and/or (3) EPC), an unduly reduced fee will be deemed not to have been validly paid and the application will be deemed withdrawn under Articles 78(2), 86(1) and 94(2) EPC and Rules 39(2) and 71(7) EPC. However, for renewal fees for European patent applications, the usual six-month grace period under Rule 51(2) EPC applies so that the missing amount, including the additional fee, can still be paid within this period. The same applies where no declaration has been filed but the applicant has paid a reduced fee.

20. The loss of rights resulting from an incorrect declaration as to the applicant's status may, where appropriate, be remedied by applying for one of the available legal remedies (under Article 121 and Rule 135 EPC or Article 122 and Rule 136 EPC) subject to making good the underpayment and paying the applicable fee. The applicant may otherwise request a decision under Rule 112(2) EPC.

VI. Cap on applications eligible for fee reductions under the micro-entity-related support scheme

21. The fee reductions for micro-entities under Rule 7a(3) EPC will apply to payments for European patent applications or international applications that have entered the European phase (Euro-PCT applications) only if the micro-entity has filed fewer than five applications with relevant dates in the five years preceding the relevant date of the application, for which the fee reduction is requested (see Annex 1 for examples).

22. The relevant date is the date of filing of the European patent application concerned or the date of entry into the European phase of the Euro-PCT application concerned. For the purpose of Rule 7a(4) EPC, the relevant date of a divisional application will be the date of receipt of this application.

23. For any application with five or more previous applications falling within the five-year period ("cap"), the micro-entity will not be eligible for a fee reduction. This applies irrespective of whether the previous applications were subject to a fee reduction and irrespective of their current status (pending, withdrawn, deemed withdrawn, refused or patent granted). This cap on eligible applications is designed to ensure that only those applicants with little or no experience of the European patent system benefit from the support measures. If multiple applications are filed by the same applicant with the same relevant date, the application numbers will determine the order for the purposes of the cap.

24. Where an application is transferred, it will be deemed to belong to the new applicant for the purposes of both future payments and the calculation of the cap. This may affect the eligibility of the applicants' other pending applications from the date of legal effect of registration of the transfer in the European Patent Register. The transfer does not affect payments made before the date of legal effect of registration of the transfer. If the new applicant is a micro-entity, a declaration is required for micro-entity support.

25. The EPO will systematically check the cap on eligible applications per applicant when eligibility is claimed.

26. In the event that a reduced fee was paid but the cap has been exceeded, the applicant will be invited to pay the missing amount within a period of two months from the date of the invitation. However, for renewal fees for European patent applications, the usual six-month grace period under Rule 51(2) EPC applies (see para. 19).

VII. Combination of language- and micro-entity-related fee reduction schemes

27. It is possible to combine the various fee reduction schemes offered by the EPO. For example, an applicant may be eligible for fee reductions under both Rule 7a(1) and Rule 7a(3) EPC.

28. For example, if a fee of EUR 1 000 is reduced by 30% to EUR 700 under Rule 7a(1) EPC, and a further reduction of 30% is applied under Rule 7a(3) EPC, the second reduction will be calculated on the basis of EUR 700, resulting in EUR 490. In other words, the two reductions taken together lead to a reduction of 51%, from EUR 1 000 to EUR 490.

Annex 1 – Example calculations for the cap on applications eligible for micro-entity-related fee reductions (Rule 7a(3) EPC)

Annex 2 – European Commission Recommendation 2003/361/EC of 6 May...