Since its establishment in the 1970s, the European Patent Office (EPO) has become the standard choice for obtaining patent protection across Europe. The European system provides for patent protection in 38 countries, including all current 27 member states within the European Union. However, protection in all those countries comes at a cost, due to the need to validate the European patent in individual countries once granted and the high official fees at the EPO.
The European Unitary Patent is intended to address some issues concerning patent validation and renewal costs for the member states of the European Union but it will be subject to the same prosecution costs as the current European patent application system.
So, is a European patent application worth the cost?
This very much depends on the number of countries in Europe where patent protection is needed and, to some extent, which countries they are. The European application system is beneficial in that the single European patent application can be prosecuted in only one language (i.e. English, German or French) and by only one representative for the whole of Europe. In contrast, the official fees are lower at national patent offices in Europe but many countries will require a local representative to be appointed for that country, as well as a translation into the national language.
This means that there is a break-even point, after which national patent applications become less cost-effective than a single European patent application.
Application language and territories
The top five national economies in Europe in order of Gross Domestic Product for 2016-2018 are:
- United Kingdom
It is not currently possible to enter France via a national patent application from a Patent Cooperation Treaty (PCT) application. From a PCT application, patent protection in France is only available via the EPO route.
If an applicant were to apply for patent protection by filing national patent applications in each of the remaining four countries, the filing, translation and local attorney fees would typically be significantly greater than the cost of filing a European patent application.
The prosecution costs and timeline for patent applications in each of the above countries can also vary significantly, with no certainty that the same scope of protection will be obtained in each.
There exists a general understanding that, if protection is sought in three or more European countries, then it is often most pragmatic to apply at the EPO for a European patent, rather than national patent applications. This is because the total costs are often comparable and the EPO route will avoid the need to manage three different co-pending patent applications for each country, often in three different languages.
What's the best option for you?
Based on the above rationale, patent applicants should consider the following three options for pursuing patent protection in Europe:
(a) National patent application in a single European country
(b) National patent applications in two European countries
(c) European patent application
If immediate costs are the greatest concern, an applicant may only wish to consider options (a) and (c). If an applicant already has an English-language version of the patent application, the UK national application filing costs will normally be significantly lower than the filing cost in any other country that requires a translation.
The European patent application system via the EPO remains the default choice where it is necessary to preserve the option of obtaining protection in three or more European countries. However national patent applications still hold a place for the cost-conscious applicant, particularly where only one or two European countries are of key strategic value.
These are the main pros and cons to think about what it comes to filing European or national patent applications.
If you're just getting started with your patent application, use our pct2ep cost estimator to find out how much it will cost to enter Europe.
11th December 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.