Fee reductions for small applicants are tempting – they noticeably lower the cost of the patent procedure. Both the European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO) offer such reductions. What many underestimate is that the reduction is not a one-time checkbox, but a continuing declaration about one’s own status. If that declaration is made incorrectly or becomes outdated, serious consequences can follow – up to and including loss of the application or unenforceability of the patent. This article explains the EPO scheme, compares it with the US system, and shows what applicants absolutely need to watch out for.
The EPO micro-entity reduction at a glance
Since 1 April 2024, under Rule 7a EPC, the EPO has granted a 30% reduction on the principal procedural fees – including the filing, search, examination, designation, grant and renewal fees. Eligible parties are microenterprises (fewer than 10 employees and an annual turnover and/or annual balance sheet total of no more than EUR 2 million), as well as natural persons, non-profit organisations, universities and public research organisations.
A filing cap applies in addition: each applicant must have filed fewer than five European or Euro-PCT applications in the five years preceding the relevant application. Where there are several applicants, each must meet the requirements. The status must be expressly declared at the latest when the relevant fee is paid; the decisive point is the applicant’s status on the date of payment. The reduction applies irrespective of nationality, residence, place of business and the language of the proceedings.
The comparison with the US
The USPTO operates two tiers that are considerably more generous than the EPO scheme:
- Small entity: 60% reduction. This covers natural persons, small businesses with no more than 500 employees (including affiliates), and non-profit institutions. A further condition is that the invention has not been assigned or licensed to a party that does not itself qualify as a small entity.
- Micro entity: 80% reduction. In addition to small-entity status, this requires in particular that the applicant’s gross income does not exceed a certain threshold (around three times the US median household income) and that the inventor has been named on fewer than five previously filed US applications; alternatively, there is a separate route for those affiliated with an institution of higher education.
At first glance, the US system looks more attractive. The decisive difference, however, lies not in the size of the reduction but in the consequences of an improper claim – and here the USPTO sharpened its approach considerably in 2025.
Risks of incorrect or outdated declarations
At the EPO: the threat of loss of rights
If the declaration of status is missing, incorrect, or a change of status is not notified, the underpaid fee is deemed not to have been validly paid. For most fees, this means the application is deemed withdrawn. In many cases this can be cured through further processing (Article 121, Rule 135 EPC): within two months of the communication noting the loss of rights, the missing amount must be paid together with the further processing fee. That fee, however, regularly exceeds the 30% saved – the apparent saving is reversed.
The renewal fees are particularly dangerous: further processing is not available for them. Here only the usual six-month grace period with a 50% surcharge applies. If the error is discovered only after that, the loss of rights may be irreversible. The EPO also carries out random checks on applicant status during the grant procedure.
In the US: surcharges, delay, and unenforceability
In 2025 the USPTO brought a new penalty system into force (statutory basis: 35 U.S.C. §§ 41(j) and 123(f), introduced in 2023 and supplemented by a good-faith exception in December 2024). Where an incorrect small- or micro-entity status is found, the following consequences may follow:
- A penalty of three times the amount. The office imposes a fine of not less than three times the amount underpaid – unless the applicant shows that the declaration was made in good faith.
- Procedural delay. The USPTO issues a combined notice of payment deficiency and an order to show cause. The application is removed from examination pending resolution – with possible losses in patent term adjustment.
- Allegation of fraud on the office. Under the MPEP sections 509.03(b) and 509.04 as revised in 2025, a status declaration made improperly or with intent to deceive constitutes “fraud practiced on the Office”. The Office of Petitions is now expressly authorised to review status declarations.
- Unenforceability of the patent. Where the false statement is made with intent to deceive, the patent may be treated as unenforceable. In infringement litigation, defendants comb the file history for precisely such discrepancies in order to devalue the patent.
The comparison shows that the EPO sanctions primarily through the threat of loss of rights, which – except for renewal fees – can usually still be cured. Since 2025, the USPTO has relied on a markedly more punitive regime combining fines, procedural disadvantages, and the risk of rendering the patent entirely worthless. In both systems, however, the same principle applies: status is not a one-time entry but must be checked on an ongoing basis.
What applicants need to watch out for
The risks described give rise to several practical guidelines:
- Check before every payment, not just at filing. The relevant status is assessed afresh at each individual fee payment (filing, examination, grant, every renewal/maintenance fee). A single assessment at filing is not enough.
- Actively monitor changes. Eligibility can be lost through growth (headcount, turnover), through exceeding the filing cap, through assignments, licences or mergers, or – in the US – through funding rounds involving affiliated entities. Such events should trigger an internal alert.
- Notify changes of status in good time and pay full fees. As soon as the requirements fall away, the office must be informed; subsequent fees must be paid in full. Reduced fees already validly paid remain unaffected.
- Multiple applicants: all must qualify. If even one co-applicant fails to meet the requirements, the reduction is lost altogether.
- Give renewal fees special protection. At the EPO in particular, a loss of rights on renewal fees is barely recoverable. A reliable deadline- and status-monitoring system that immediately informs the party responsible for payment of any change of status is indispensable here.
- When in doubt, pay the full fee. If status is unclear, it is often safer to pay in full first and – where possible – request a refund later. An overpayment is easier to recover than an incorrect declaration is to justify.
- Document your evidence. In the US especially, a careful, demonstrable assessment (“reasonable inquiry”) is expected. Records supporting the status claimed should be kept.
- Review on any transfer. If the application passes to a new owner who does not meet the requirements, entitlement is lost – the reduced payment can then become invalid.
Conclusion
The micro-entity reduction is a valuable instrument for cutting the cost of the patent procedure – 30% at the EPO, and up to 80% in the US. The flip side is considerable risk where declarations are incorrect or outdated: at the EPO, loss of rights looms; in the US, since 2025, there is in addition a triple-fee penalty, procedural delay, and, in the worst case, unenforceability of the patent. Anyone using the reduction should therefore check status on an ongoing and documented basis – and, when in doubt, pay in full rather than buy a modest saving at a disproportionately high risk.
