|If only it were so easy!|
What is the outlook for European patent litigation in light of the planned fee structure? Ingve explains:
The approach of trying to foster the adequate utilization of a newly created court system by making the use of a concurrent judicial competence dependent on the payment of a fee does not really show great trust and confidence of the Contracting Parties as to its expected acceptance. Vice versa, this feeds and increases the skepticism among the users.
This approach becomes fully bizarre as regards patents and patent applications which were granted or applied for prior to the entry into force of the UPCA and thus at a time at which the new court system which they are now meant to be subjected to retroactively, has not even been existing. Such protective rights stand under the previous regime of legal protection, this should continue to be available for them free of charge.
Already due to these manifest doubts in the lawfulness of an opt-out fee under constitutional law its collection should be abstained from entirely, all the more since the confidence in the Unified Patent Court expressed by such step would be an important signal to the user circles. However, this is not to be expected. Therefore, the constitutionality of such fee and of the Agreement purportedly providing for its collection may possibly have to be discussed in the future.