Financing of Patent Litigation in the Member States – Report from the National Litigation Matters Sub-committee of the Litigation Committee
Introduction
As appears from the strategic plan 2028, the EPO is in the process of investigating the possibility of providing financial support for patent litigation to micro-entities that own patent rights and are confronted with a potential litigation threat. It is recognised that concern over litigation and not having the capacity to enforce their patent rights in cases of infringement represent one of the main hurdles to promoting the use of the patent system by these entities.
Prompted by this, the National Litigation Matters Sub-committee of the Litigation Committee of the epi has investigated the availability of litigation financing on a national level. Their investigation was not limited to micro-entities but broadened to encompass entities of any size. In addition to the availability of public funding, possibilities for private funding and insurance were also investigated.
Results
The investigation was carried out through a questionnaire which was provided to all members of the Litigation Committee. The questionnaire was also sent to the epi Council members of those countries for which there are no members in the Litigation Committee. Input was received in the period September 2024 – February 2025. The questionnaire is available at https://patentepi.org/r/info-2502-9. Results were collected in a summary table which is available at https://patentepi.org/r/info-2502-10.
The results may be summarised as follows:
Public Funding
Dedicated public funding for patent litigation is not available in the member states. Many member states offer some form of litigation support for low-income individuals or small companies to allow access to justice, but these regulations are not specifically applicable to patent litigation. It is expected that in many cases patent litigation will fall outside their scope.
In some member states, the IP Scan Enforcement service tailored for SMEs is provided by the EUIPO. This service applies in the following EU Member States: Bulgaria, Croatia, Czech Republic, Estonia, France, Cyprus, Latvia, Portugal, and Slovenia. The maximum grant amounts range between € 450 and € 810, with €1350 for France being an exception. Further information can be found on EUIPO’s website. No information is available on how often this service is used for patent litigation.
Private Funding
Private funding for patent litigation appears to be available in many member states. It is organised on a case-by-case basis and appears to be handled similarly to other investment models. Firms that specialize in litigation funding are sometimes involved in patent litigation, though the extent of their engagement varies significantly. Crowd-funding may also play a role. In some member states, third-party funding is subject to restrictions. Ireland, for instance, has limitations on funding by parties without a direct interest in the dispute making private funding more challenging in certain cases.
The European Law Institute has recently issued guidance on third party funding. The document can be accessed on ELI’s website. This guidance is applicable to litigation funding in general, but does not specifically address patent litigation.
Insurance
Insurance for patent litigation seems to be a growing but still limited activity. It is available through international insurance providers which are not limited to a specific member state. Their terms and conditions vary widely per case, making them difficult to compare. Whether the potential benefits outweigh the premiums will have to be determined on a case-by-case basis.
It might be of interest to further investigate the success rate of claims under such insurance policies, as well as whether more insurers are beginning to enter this market, although it is suspected that it may be difficult to obtain the relevant information.
Conclusion and Future Outlook
For public funding for patent litigation, the EUIPO IP Scan Enforcement service for small and medium sized enterprises seems to be the most relevant tool currently available. However, it is available in only a limited number of member states and involves relatively low sums of money. There is no clear data on how often it is used for patent litigation cases in practice. It is noteworthy that it is available for both patentees and parties accused of infringement.
Private litigation funding is available in multiple jurisdictions, though regulatory frameworks vary across member states, which may influence its accessibility and application. More transparency in the terms and conditions of private funding agreements would help assess its relevancy. It will always be dependent on the business case of the patentee or the (alleged) infringer.
Insurance for patent litigation remains an area of growing interest, but it is still not widely adopted. Further analysis would be required to determine whether such insurance products are financially viable and whether insurers are expanding coverage for these types of disputes.
In their 2028 strategic plan, the EPO indicates that the Office will reach out to patent professionals and specialists to develop a suitable pro-bono programme aiming to provide micro-entities that own patent rights with initial and clearly delimited support when it comes to early assessment of litigation risks. It is believed that defining the scope of such a programme will not be a simple task. A key preliminary question may be whether such support should be limited to patent holders or also extend to potential defendants facing patent litigation within the member states.
Final Remarks
We thank the members of the Litigation Committee, the members of the epi Council of those countries for which there are no members in the Litigation Committee, and others who provided information for contributing to this investigation. The contributors provided the information to the best of their knowledge, but please be aware that law and circumstances change over time.
