A --- Application costs

Cost is no doubt the major obstacle impeding SMEs access to patent systems worldwide. In addressing this concern, however, second tier patent proposals focus strictly on the reduction of acquisition costs. It seems quite safe to assume that second tier protection would certainly be characterized by lower fees (filing fees, issuance fees, and postissuance maintenance fees). 162 In addition, by avoiding the creation of a [footnotes omitted] Community level right, the EU neatly avoids questions about the costs of translations, another major component of costs for would-be patent applicants.163

A number of questions should be raised about the proposition that second tier protection brings reduced costs. First, looking strictly to government fees, one should question the likely magnitude of the cost reduction. National patent offices in Europe and the United States, as well as the EPO, are embarking on cost reductions for the regular patent system even as the second tier proposals are being considered. 164 Claims that second tier protection offers generous reductions in fees may prove to be seriously inflated.1 65

Perhaps more importantly, one may wonder why the problem of burdensome costs for SMEs is best addressed via the indirect route of creating an entirely new regime of rights which may or may not prove more affordable to SMEs. Attacking costs of the regular patent system directly might seem to be effort better spent. Indeed, U.S. law already contains innovations which at least attempt to address the problem of high acquisition costs. For example, "small entities" qualify for a fifty percent reduction in regular patent fees. 166 While few would argue that provisions such as this amount to a panacea for SMEs wishing to participate in the patent system, they at least raise hope that acquisition costs can be made reasonable through direct means rather than through the creation of an entirely new layer of intellectual property rights.

Second, attorneys fees represent a substantial acquisition cost for regular patents which dwarfs government fees in the ordinary case.167 Given the substantive demands of the proposed second tier regimes for adequate disclosure 68 and limitations on opportunities for post-grant [footnotes omitted] amendments, 169 there is every reason to believe that attorneys fees will also represent a substantial acquisition cost in those regimes. Indeed, there may be even a greater need for attorney expertise in the drafting of second tier patent applications because, in the absence of substantive examination, applicants may believe that only by placing a premium on skillful drafting can they demonstrate reasonably to potential licensees that the second tier patent secures enforceable rights. 170