Maintaining a unitary patent in force is delightfully simple: a single annual official fee, paid to a single office (the EPO), for the entire territory (Article 11 of Regulation 1257/2012). No more juggling official fees office by office. The only requirement is to pay on time.
One official fee, one office, the entire territory: that is the principle (Article 11 of Regulation 1257/2012). The contentious question remains: how much?
The “True Top 4” level
The amount of the annual official fees has been set at the so-called “True Top 4” level: the sum of the annual official fees due in the four states where European patents were most frequently validated at the time the fee schedule was established—Germany, France, the United Kingdom, and the Netherlands (Article 12 of Regulation 1257/2012).
An amusing detail: the “Top 4” includes the United Kingdom, which is no longer part of the system following Brexit. Thus, in part, the fee is calculated based on a country that is no longer included. That said, the total remains reasonable: over the first ten years, the cumulative annual official fees amount to less than 5,000 euros—far less than the cost of validation and maintenance in four separate countries (see the cost of a unitary patent and the EPO fee schedule).
Progressive official fees
As with national patents, the official fees are progressive: modest in the early years, they increase as the patent ages, up to the twentieth year. The logic is clear: you only pay a high fee for what you wish to retain.
Due date and grace period
The annual official fee is due on the last day of the month containing the anniversary of the filing date. It may still be paid during a six-month grace period, subject to a 50% surcharge.
The “license of right” reduction
A 15% reduction is granted if the proprietor files a license of right declaration (Article 8 of Regulation 1257/2012): in exchange for a commitment to license, the annual bill is reduced.
Where there is an annual official fee, there is a risk of forgetting it. And with the unitary patent, the oversight comes at a high price—literally across the entire territory.
Lapse: losing everything at once
Failure to pay the annual official fee (including the six-month grace period) results in the lapse of the unitary patent. Since it is indivisible, it lapses in all participating member states simultaneously (Article 3(2) of Regulation 1257/2012): no half-measures, no selective abandonment country by country.
This is the flip side of simplicity: with a bundle of national patents, you can abandon secondary countries to maintain only key markets. With the unitary patent, it is all or nothing—you keep all eighteen countries, or you lose all eighteen.
Restoration of rights
All is not lost in case of failure: restoration of rights is possible (Rule 22 of the Rules relating to Unitary Patent Protection (UPR)), provided the usual requirement of having exercised “due care” is met and strict deadlines are observed. Once again, good deadline management is preferable to relying on the Office’s leniency.