European Patent Office micro-entity fee reductions

Under new Rule 7a(3) EPC which became effective on 01 April 2024, the European Patent Office (EPO) now provides for 30% official fee reductions for micro entities which meet the following criteria:

• Each applicant must have filed fewer than five applications in the five years before the relevant date of filing the application for which the fee reduction is claimed.
• Each applicant must be a micro entity, which means either a micro enterprise, a natural person (an individual), or a non-profit organisation, university, or public research organisation.

Detailed definitions of micro entities can be found on the EPO website, in its “Notice from the European Patent Office dated 25 January 2024 concerning fee-related support measures for small entities".

A micro enterprise is defined as an enterprise which employs fewer than ten full-time people and an annual turnover and/or annual balance sheet total of up to EUR 2 million, but for comparing against these thresholds, it is important to consider employees and turnovers of linked enterprises and partner enterprises, not just the applicant itself.

Linked enterprises and partner enterprises are defined by the European Union in the “Commission Recommendation of 06 May 2003 concerning the definition of micro, small and medium-sized enterprises”. Assessment of these provisions is complex and may require accountancy advice.

The 30% fee reduction is available in respect of the following EPO official fees (as set out in Rule 7a(3) EPC):

1. the filing fee;
2. the search fee;
3. the examination fee;
4. the designation fee;
5. the fee for grant; and
6. the renewal fees for the European patent application.

There is some risk in claiming the micro-entity fee reduction. If the reduction is claimed when the applicant does not qualify as a micro entity, this can risk the application being deemed withdrawn due to the fee payment being invalid (see EPO service and support: “What happens if I wrongly pay a reduced amount?”). For some fees there can be an opportunity for requesting further processing in that case (but the further processing cost would typically be much higher than the micro-entity fee reduction). Further processing does not apply to renewal fees. For renewal fees there is a risk that if the error is not discovered until too late, the relevant time periods that would allow for recovery of the error may already have expired.

Therefore, the consequences of incorrectly claiming micro-entity status can be severe, including possible loss of the patent application. If in any doubt, it is safest not to claim the fee reduction.

Given this risk, if we are to claim a micro-entity fee reduction on your behalf, we will need you to confirm explicitly that each applicant meets the requirements set out by the EPO (see EPO service and support: “Am I eligible for micro-entity fee reductions?". We would ask each applicant to sign the EPO’s micro-entity declaration form, which when submitted to the EPO will appear on the public record. Please note that the EPO has powers to investigate claims for micro-entity status and to ask for further evidence if there are any doubts on the validity of the micro-entity claim.

Unfortunately, EPO system limitations mean that, once the micro-entity fee reduction has been claimed, it is not possible to revert to paying fees at the full non-reduced rate unless an explicit retraction of the micro-entity fee reduction is filed, which we cannot do without your explicit instruction.

Therefore, once a micro-entity fee reduction claim has been made for a patent application, it will be your responsibility to inform us of any subsequent change which means any applicant no longer qualifies as a micro entity, and we cannot accept any responsibility for a loss of rights caused by your failure to inform us of any relevant change in applicant entity status. In absence of instructions to the contrary, we will assume each applicant’s entity status is the same as the previous time an official fee was paid.

If you prefer not to accept the risk of loss of rights due to your failure to inform us of changes of applicant entity status, then it would be safer not to apply for the micro-entity fee reduction in the first place.