Official Journal February 2014

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Citation: OJ EPO 2014, A23
Online publication date: 28.2.2014

Notice from the EPO dated 10 January 2014 concerning amended Rule 6 EPC and Article 14(1) RFees

1. By decision of 13 December 2013 (CA/D 19/13) the Administrative Council of the European Patent Organisation amended Rule 6 EPC and Article 14(1) of the Rules relating to Fees (RFees) so as to introduce a new system of language-related fee reductions designed to support small applicants whose residence or principal place of business is in an EPC contracting state and who file European patent applications or requests for examination in an official language of that state other than English, French or German.

2. The amendment also limits the scope of application of Rule 6(3) EPC in conjunction with Article 14(1) RFees to the filing fee and examination fee.

The categories of applicant eligible for the fee reductions are:

- small and medium-sized enterprises (SMEs),

- natural persons,

- non-profit organisations, universities and public research organisations,

whose residence or principal place of business is in an EPC contracting state with an official language other than English, French or German, and nationals of such states who are resident abroad.

It increases the reduction available from currently 20% to 30% of the fees concerned.

3. This amendment will enter into force on 1 April 2014. It will apply to European patent applications filed on or after that date, and to international applications entering the European phase on or after that date. Amended Rule 6 EPC and Article 14(1) RFees will apply to oppositions, appeals, petitions for review and requests for limitation or revocation filed on or after 1 April 2014. The present notice sets out the eligibility criteria for the fee reduction, and information about the new procedure.

Declaration of entitlement

4. Applicants wishing to benefit from the reduction in the filing or examination fee under Article 14(1) RFees must expressly declare that they are an entity or natural person covered by Rule 6(4) EPC.

5. This declaration may be given by ticking the appropriate box in the form for requesting the grant of a European patent (Form 1001) or for international applications entering the European phase (Form 1200). Applicants wishing to file their declaration separately can use a pre-printed declaration (Form 1011) made available by the EPO. The use of Form 1011 is, however, not mandatory. In any event, the declaration must be filed at the latest by the time of payment of the (reduced) filing or examination fee.

6. If there are multiple applicants, each one must be an entity or a natural person within the meaning of Rule 6(4) EPC for the fee reduction to apply.

Definitions

7. For the purposes of Rule 6(4) EPC, the definition of SMEs is that contained in European Commission Recommendation 2003/361/EC of 6 May 2003 as published in the Official Journal of the European Union (L 124 of 20 May 2003, p. 36) and annexed to this notice. Under the recommendation, an enterprise is considered to be any entity engaged in an economic activity, irrespective of its legal form. The category of micro, small and medium-sized enterprises is made up of enterprises which employ fewer than 250 persons, which have an annual turnover not exceeding EUR 50 million and/or an annual balance sheet total not exceeding EUR 43 million and for which no more than 25% of the capital is held directly or indirectly by another company that is not an SME.

8. The eligibility of the further entities listed in Rule 6(4) EPC is subject to the following definitions:

(i) "Non-profit organisations" are organisations not allowed by their legal form or statutes, under the relevant law, to be a source of income, profit or other financial gain to their owners, or – if allowed 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 to be understood as "classical" universities, meaning institutions of higher education and research, under the relevant law. However, comparable entities, such as secondary or higher education establishments, will be considered to be universities.

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

9. By declaring that they are an entity or natural person under Rule 6(4) EPC, applicants officially confirm that they are either an SME under Rule 6(5) EPC or come under one of the other eligible categories defined in the present notice. They are then entitled to pay the reduced amount of the respective fee.

10. Changes in the status of an entity under Rule 6(4) EPC which occur after filing the declaration will not have a retroactive effect on fee reductions that were justified when granted. If the patent application is transferred, the fee reduction will continue to apply only if the new applicant too is eligible under Rule 6(4) EPC and the present notice.

11. If the random checks conducted during the course of the grant procedure give rise to reasonable doubt as to the veracity of the declaration given by the applicant, the EPO may request appropriate evidence.

Incorrect or missing declarations and the legal remedies applicable

12. Should it become apparent that an incorrect declaration has been filed, i.e. the applicant has declared itself to be an SME, natural person, non-profit organisation, university or public research organisation although not covered by Rule 6(5) EPC or the other definitions laid down in the present notice, the unjustifiably reduced fee will be deemed not to have been paid and the application will be deemed withdrawn under Articles 78(2) and 94(2) EPC. The same applies if no declaration has been filed.

13. The loss of rights arising from an incorrect declaration may be remedied by filing a request for further processing under Article 121 and Rule 135 EPC – subject to making good the underpayment and paying the fee for further processing – or by requesting a decision under Rule 112(2) EPC.

Annex: European Commission Recommendation 2003/361/EC of 6 May 2003,

available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:124:0036:0041:EN:PDF

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