European Patent Convention
Encyclopedia
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty
instituting the European Patent Organisation
and providing an autonomous legal
system according to which European patents are granted. The term European patent is used to refer to patent
s granted under the European Patent Convention. However, after grant a European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure
, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.
The EPC provides a legal framework for the granting of European patents, via a single, harmonized procedure before the European Patent Office
. A single patent application
, in one language, may be filed at the European Patent Office at Munich
, at its branches at The Hague
or Berlin
or at a national patent office of a Contracting State, if the national law of the State so permits.
There is currently no single, centrally enforceable, European Union
-wide patent. Since the 1970s, there has been concurrent discussion towards the creation of a Community patent
in the European Union. In May 2004 however, this has led to a stalemate.
class="wikitable collapsible" style="width:100%; height:40px;" align="center">
States with an extension agreement with the European Patent Office (EPO), with respective date of entry into force
Date
States
1 December 2004
Bosnia and Herzegovina
1 March 2010
Montenegro
class="wikitable collapsible collapsed" style="width:100%; height:40px;" align="center">
States which had an extension agreement with the EPO, and which are now Contracting States to the EPC
Period during which the agreement applied
States
from
to
1 March 1994
30 November 2002
Slovenia
1 March 1994
31 December 2007
Croatia
5 July 1994
30 November 2004
Lithuania
1 May 1995
30 June 2005
Latvia
1 February 1996
30 April 2010
Albania
15 October 1996
28 February 2003
Romania
1 November 1997
31 December 2008
Republic of Macedonia
1 November 2004
30 September 2010
Serbia
In September 1949, French Senator Henri Longchambon
proposed to the Council of Europe
the creation of a European Patent Office. His plan was however not found to be practicable by the Council's Committee of Experts in patent matters. The meetings of the Committee nevertheless led to two Conventions, one on the formalities required for patent applications
(1953) and one on the international classification of patent
(1954). The Council's Committee then carried on its work on substantive patent law, resulting in the signature of the Strasbourg Patent Convention in 1963.
In 1973, the Munich Diplomatic Conference for the setting up of a European System for the Grant of Patents took place and the Convention was then signed in Munich (the Convention is sometimes known as the Munich Convention). The signature of the Convention was the accomplishment of a decade
-long discussion during which Kurt Haertel, considered by many as the father of the European Patent Organisation, and François Savignon played a decisive role.
The Convention entered into force on 7 October 1977 for the following first countries: Belgium
, Germany
(then West Germany
), France
, Luxembourg
, Netherlands
, Switzerland
and United Kingdom
, and on 1 May 1978 for Sweden
. However, the first patent applications were filed on 1 June 1978 (date fixed by the Administrative Council which held its first meeting on 19 October 1977). Subsequently, other countries have joined the EPC.
The EPC is separate from the European Union (EU), and its membership is different; Switzerland
, Liechtenstein
, Turkey
, Monaco
, Iceland
, Norway
, Croatia
, the Republic of Macedonia
, San Marino
, Albania
and Serbia
are members of the EPO but are not members of the EU. The Convention is, as of October 2010, in force in 38 countries. Serbia became the 38th state on 1 October 2010.
In addition to the Contracting States, States may also conclude a cooperation agreement with the EPO, known as an extension agreement. The state then becomes "extension state", which means European patents granted by the EPO may be extended to those countries by the payment of additional fees and completion of certain formalities. As of October 2010, Bosnia and Herzegovina
, and Montenegro
have extension agreements with the EPO so that, in effect, these states can be designated in a European patent application.
A diplomatic conference was held in November 2000 in Munich to revise the Convention, amongst other things to integrate in the EPC new developments in international law
and to add a level of judicial review of the Boards of Appeal
decisions. The revised text, informally called the EPC 2000
, entered into force on 13 December 2007.
of 19 June 1970."
The content of the Convention includes several texts in addition to the main 178 articles. These additional texts, which are integral parts of the Convention, are
s", states:
This article constitutes the "fundamental provision of the EPC which governs the patentability of inventions".
However, the EPC provides further indications on what is patentable. There are exclusions under Article 52(2) and (3) EPC and exclusions under Article 53 EPC.
First, discoveries
, scientific theories
, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, programs for computers and presentations of information are not regarded as inventions and are excluded from patentability only to the extent that the invention relates to those areas as such. This is "a negative, non-exhaustive list of what should not be regarded as an invention within the meaning of Article 52(1) EPC." (For further information, see also: Software patents under the EPC
).
The second set of exclusions, or exceptions, include
European patent applications may be filed in any official language of an EPC contracting state (subject to certain requirements), but patent applications are prosecuted in the three official languages of the EPO - English
, French
and German
(if an application is filed in a language other than the official languages, a translation must be filed into one of the three. The filing fee is reduced to offset the additional cost of the translation). The official language of filing (or of the translation) is adopted as the "language of proceedings" and is used by the EPO for communications.
European patent applications are prosecuted
in a similar fashion to most patent systems - the invention is searched and published, and subsequently examined for compliance with the requirements of the EPC.
During the prosecution phase, a European patent is a single regional proceeding, and "the grant of a European patent may be requested for one or more of the Contracting States." An applicant for a European patent designates those Contracting States in which protection for the invention
is desired, and the designations need to be "confirmed" later during the procedure through the payment of designation fees. Once granted by the EPO, a European patent comes into existence effectively as a group of national patents in each of the designated Contracting States.
. The opposition procedure, governed by the EPC, allows third parties to file an opposition against a European patent within 9 months of the date of grant of that patent. It is a quasi-judicial
process, subject to appeal, which can lead to maintenance, maintenance in amended form or revocation of a European patent. Simultaneously to the opposition, a European patent may be the subject of litigation at a national level (for example an infringement dispute). National courts may suspend such infringement proceedings pending outcome of the opposition proceedings to avoid proceedings running in parallel and the uncertainties that may arise from that.
A European patent confers rights on its proprietor, in each Contracting State in respect of which it is granted, from the date of publication of the mention of its grant in the European Patent Bulletin
. That is also the date of publication of the B1 document, i.e. the European patent specification. This means that the European patent is granted and confers rights in all its designated Contracting States at the date of mention of the grant, whether or not a prescribed translation is filed with a national patent office later on (though the right may later be deemed never to have existed in any particular State if a translation is not subsequently filed in time, as described below).
A translation of a granted European patent must be filed in some EPC Contracting States to avoid loss of right. Namely, in the Contracting States which have "prescribe[d] that if the text, in which the European Patent Office intends to grant a European patent (...) is not drawn up in one of its official languages, the applicant for or proprietor of the patent shall supply to its central industrial property office a translation of this text in one of its official languages at his option or, where that State has prescribed the use of one specific official language, in that language". The European patent is void ab initio in a designated Contracting State where the required translation (if required) is not filed within the prescribed time limit after grant. In other Contracting States, no translation needs to be filed, for example in Ireland
if the European patent is in English
. In those Contracting States where the London Agreement
is in force the requirement to file a translation of the European patent has been entirely or partially waived. If a translation is required, a fee covering the publication of said translation may be due as well.
are determined under national law.
Infringement
is remitted almost entirely to national law and to national courts. In one of its very few substantive interventions into national law, the EPC requires that national courts must consider the "direct product of a patented process" to be an infringement. The "extent of the protection" conferred by a European patent is determined primarily by reference to the claims of the European patent (rather than by the disclosure of the specification and drawing
s, as in some older patent systems), though the description and drawings are to be used as interpretive aids in determining the meaning of the claims. A "Protocol on the Interpretation of Article 69 EPC" provides further guidance, that claims are to be construed using a "fair" middle position, neither "strict, literal" nor as mere guidelines to considering the description and drawings, though of course even the protocol is subject to national interpretation. The authentic text of a European patent application and of a European patent are the documents in the language of the proceedings.
All other substantive rights attached to a European patent in a Contracting State, such as what acts constitute infringement (indirect and divided infringement, infringement by equivalents, extraterritorial infringement, infringement outside the term of the patent with economic effect during the term of the patent, infringement of product claims by processes for making or using, exports, assembly of parts into an infringing whole, etc.), the effect of prosecution history on interpretation of the claims, remedies for infringement or bad faith enforcement (injunction, damages, attorney fees, other civil penalties for willful infringement, etc.), equitable defenses, coexistence of an EP national daughter and a national patent for identical subject matter, ownership and assignment, extensions to patent term for regulatory approval, etc., are expressly remitted to national law.
For a period in the late-1990's, national courts issued cross-border injunctions covering all EP jurisdictions, but this has been limited by the European Court of Justice
. In two cases in July 2006 interpreting Articles 6.1 and 16.4 of the Brussels Convention
, the European Court of Justice held that European patents are national rights that must be enforced nationally, that it was "unavoidable" that infringements of the same European patent have to be litigated in each relevant national court, even if the lawsuit is against the same group of companies, and that cross-border injunctions are not available.
Validity is also remitted largely to national law and national courts. limits the application of national law to only the following grounds of invalidity, and specifies that the standards for each ground are those of national law:
A national court may partially invalidate a European patent in a Contracting State, e.g., by revoking only some claims, or by permitting amendment to the claims, the description or the drawings, as allowed by national law.
A European patent is also non-unitary in that it may be revoked in one Contracting State while maintained in another. However, a national court in one Contracting State may not revoke a European patent in another Contracting State.
EPO Boards of Appeal decisions are not precedential at all upon national courts, which have exclusive jurisdiction on validity and infringement after a European patent has been granted (except during the 9 month opposition period, which can only relate to validity). However, national courts will tend to take note, and may find 'persuasive', decisions of the EPO Boards, though they can disagree with them.
The EPC requires all jurisdictions to give a European patent a term of 20 years from the filing date, the filing date being the actual date of filing an application for a European patent or the date of filing of an international application under the PCT
designating the EPO. The filing date is not necessarily the priority date
, which can be up to one year earlier. The term of a granted European patent may be extended under national law if national law provides term extension to compensate for pre-marketing regulatory approval. For EEA
member states this is by means of a supplementary protection certificate
.
(PCT) and the entry into "European regional phase". The European patent application is therefore said to be a "Euro-PCT application" and the EPO is said to act as a designated or elected Office. In case of conflict between the provisions of the EPC and those of the PCT, the provisions of the PCT and its Regulations prevail over those of the EPC.
Eleven EPC Contracting States, namely Belgium
, Cyprus
, France
, Greece
, Ireland
, Italy
, Latvia
, Malta
, Monaco
, the Netherlands
and Slovenia
have "closed their national route". This means that it is no longer possible to obtain a national patent protection through the international (PCT) phase without entering into the regional European phase and obtaining a European patent.
See also "European Patent Organisation" box below.
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
instituting the European Patent Organisation
European Patent Organisation
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention of 1973...
and providing an autonomous legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
system according to which European patents are granted. The term European patent is used to refer to patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s granted under the European Patent Convention. However, after grant a European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure
Opposition procedure before the European Patent Office
The opposition procedure before the European Patent Office is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed...
, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.
The EPC provides a legal framework for the granting of European patents, via a single, harmonized procedure before the European Patent Office
European Patent Office
The European Patent Office is one of the two organs of the European Patent Organisation , the other being the Administrative Council. The EPO acts as executive body for the Organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative...
. A single patent application
Patent application
A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
, in one language, may be filed at the European Patent Office at Munich
Munich
Munich The city's motto is "" . Before 2006, it was "Weltstadt mit Herz" . Its native name, , is derived from the Old High German Munichen, meaning "by the monks' place". The city's name derives from the monks of the Benedictine order who founded the city; hence the monk depicted on the city's coat...
, at its branches at The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
or Berlin
Berlin
Berlin is the capital city of Germany and is one of the 16 states of Germany. With a population of 3.45 million people, Berlin is Germany's largest city. It is the second most populous city proper and the seventh most populous urban area in the European Union...
or at a national patent office of a Contracting State, if the national law of the State so permits.
There is currently no single, centrally enforceable, European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
-wide patent. Since the 1970s, there has been concurrent discussion towards the creation of a Community patent
Community Patent
The EU patent or European Union patent, formerly known as the Community patent, European Community Patent, or EC patent and sometimes abbreviated as COMPAT, is a patent law measure being debated within the European Union, which would allow individuals and companies to obtain a unitary patent...
in the European Union. In May 2004 however, this has led to a stalemate.
Background and rationale
Before 1978, two important problems when seeking to obtain patent protection in Europe in a number of countries were first the need to file a separate patent application in each country, with a subsequent distinct grant procedure in each country, and secondly the need to translate the text of the application into a number of different languages. Different languages are indeed utilised across the European countries and there is substantial expense in preparing translations into each of those languages. While the European Patent Convention does not totally overcome the need for translations (since a translation may be required after grant to validate a patent in a given EPC Contracting State), it does centralise the prosecution in one language and defers the cost of translations until the time of grant.History
| Contracting states and extension states, in detail (with dates of entry into force). | |||
|---|---|---|---|
| class="wikitable collapsible" style="width:100%; height:40px;" align="center"> | Contracting States to the European Patent Convention, with respective date of entry into force | ||
| Date | States | ||
| 7 October 1977 | Belgium Belgium Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many... , Germany Germany Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate... (then West Germany West Germany West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990.... ), France France The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France... , Luxembourg Luxembourg Luxembourg , officially the Grand Duchy of Luxembourg , is a landlocked country in western Europe, bordered by Belgium, France, and Germany. It has two principal regions: the Oesling in the North as part of the Ardennes massif, and the Gutland in the south... , Netherlands Netherlands The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders... , Switzerland Switzerland Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition.... , United Kingdom United Kingdom The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages... |
||
| 1 May 1978 | Sweden Sweden Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund.... |
||
| 1 December 1978 | Italy Italy Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and... |
||
| 1 May 1979 | Austria Austria Austria , officially the Republic of Austria , is a landlocked country of roughly 8.4 million people in Central Europe. It is bordered by the Czech Republic and Germany to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the... |
||
| 1 April 1980 | Liechtenstein Liechtenstein The Principality of Liechtenstein is a doubly landlocked alpine country in Central Europe, bordered by Switzerland to the west and south and by Austria to the east. Its area is just over , and it has an estimated population of 35,000. Its capital is Vaduz. The biggest town is Schaan... |
||
| 1 October 1986 | Greece Greece Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe.... , Spain Spain Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula... |
||
| 1 January 1990 | Denmark Denmark Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark... |
||
| 1 December 1991 | Monaco Monaco Monaco , officially the Principality of Monaco , is a sovereign city state on the French Riviera. It is bordered on three sides by its neighbour, France, and its centre is about from Italy. Its area is with a population of 35,986 as of 2011 and is the most densely populated country in the... |
||
| 1 January 1992 | Portugal Portugal Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the... |
||
| 1 August 1992 | Ireland Ireland Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth... |
||
| 1 March 1996 | Finland Finland Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside... |
||
| 1 April 1998 | Cyprus Cyprus Cyprus , officially the Republic of Cyprus , is a Eurasian island country, member of the European Union, in the Eastern Mediterranean, east of Greece, south of Turkey, west of Syria and north of Egypt. It is the third largest island in the Mediterranean Sea.The earliest known human activity on the... |
||
| 1 November 2000 | Turkey Turkey Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe... |
||
| 1 July 2002 | Bulgaria Bulgaria Bulgaria , officially the Republic of Bulgaria , is a parliamentary democracy within a unitary constitutional republic in Southeast Europe. The country borders Romania to the north, Serbia and Macedonia to the west, Greece and Turkey to the south, as well as the Black Sea to the east... , Czech Republic Czech Republic The Czech Republic is a landlocked country in Central Europe. The country is bordered by Poland to the northeast, Slovakia to the east, Austria to the south, and Germany to the west and northwest.... , Estonia Estonia Estonia , officially the Republic of Estonia , is a state in the Baltic region of Northern Europe. It is bordered to the north by the Gulf of Finland, to the west by the Baltic Sea, to the south by Latvia , and to the east by Lake Peipsi and the Russian Federation . Across the Baltic Sea lies... , Slovakia Slovakia The Slovak Republic is a landlocked state in Central Europe. It has a population of over five million and an area of about . Slovakia is bordered by the Czech Republic and Austria to the west, Poland to the north, Ukraine to the east and Hungary to the south... |
||
| 1 December 2002 | Slovenia Slovenia Slovenia , officially the Republic of Slovenia , is a country in Central and Southeastern Europe touching the Alps and bordering the Mediterranean. Slovenia borders Italy to the west, Croatia to the south and east, Hungary to the northeast, and Austria to the north, and also has a small portion of... |
||
| 1 January 2003 | Hungary Hungary Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The... |
||
| 1 March 2003 | Romania Romania Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea... |
||
| 1 March 2004 | Poland Poland Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north... |
||
| 1 November 2004 | Iceland Iceland Iceland , described as the Republic of Iceland, is a Nordic and European island country in the North Atlantic Ocean, on the Mid-Atlantic Ridge. Iceland also refers to the main island of the country, which contains almost all the population and almost all the land area. The country has a population... |
||
| 1 December 2004 | Lithuania Lithuania Lithuania , officially the Republic of Lithuania is a country in Northern Europe, the biggest of the three Baltic states. It is situated along the southeastern shore of the Baltic Sea, whereby to the west lie Sweden and Denmark... |
||
| 1 July 2005 | Latvia Latvia Latvia , officially the Republic of Latvia , is a country in the Baltic region of Northern Europe. It is bordered to the north by Estonia , to the south by Lithuania , to the east by the Russian Federation , to the southeast by Belarus and shares maritime borders to the west with Sweden... |
||
| 1 March 2007 | Malta Malta Malta , officially known as the Republic of Malta , is a Southern European country consisting of an archipelago situated in the centre of the Mediterranean, south of Sicily, east of Tunisia and north of Libya, with Gibraltar to the west and Alexandria to the east.Malta covers just over in... |
||
| 1 January 2008 | Norway Norway Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million... , Croatia Croatia Croatia , officially the Republic of Croatia , is a unitary democratic parliamentary republic in Europe at the crossroads of the Mitteleuropa, the Balkans, and the Mediterranean. Its capital and largest city is Zagreb. The country is divided into 20 counties and the city of Zagreb. Croatia covers ... |
||
| 1 January 2009 | Republic of Macedonia Republic of Macedonia Macedonia , officially the Republic of Macedonia , is a country located in the central Balkan peninsula in Southeast Europe. It is one of the successor states of the former Yugoslavia, from which it declared independence in 1991... |
||
| 1 July 2009 | San Marino San Marino San Marino, officially the Republic of San Marino , is a state situated on the Italian Peninsula on the eastern side of the Apennine Mountains. It is an enclave surrounded by Italy. Its size is just over with an estimated population of over 30,000. Its capital is the City of San Marino... |
||
| 1 May 2010 | Albania Albania Albania , officially known as the Republic of Albania , is a country in Southeastern Europe, in the Balkans region. It is bordered by Montenegro to the northwest, Kosovo to the northeast, the Republic of Macedonia to the east and Greece to the south and southeast. It has a coast on the Adriatic Sea... |
||
| 1 October 2010 | Serbia Serbia Serbia , officially the Republic of Serbia , is a landlocked country located at the crossroads of Central and Southeast Europe, covering the southern part of the Carpathian basin and the central part of the Balkans... |
||
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...
Montenegro
Montenegro Montenegrin: Crna Gora Црна Гора , meaning "Black Mountain") is a country located in Southeastern Europe. It has a coast on the Adriatic Sea to the south-west and is bordered by Croatia to the west, Bosnia and Herzegovina to the northwest, Serbia to the northeast and Albania to the...
In September 1949, French Senator Henri Longchambon
Henri Longchambon
Henri Longchambon was a French politician. He was Minister for Supply from January 26, 1946 to June 24, 1946 in the government of Félix Gouin, and later Secretary of State for Scientific Research and Technical Progress from June 19, 1954 to February...
proposed to the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
the creation of a European Patent Office. His plan was however not found to be practicable by the Council's Committee of Experts in patent matters. The meetings of the Committee nevertheless led to two Conventions, one on the formalities required for patent applications
European Convention relating to the Formalities required for Patent Applications
The European Convention relating to the formalities required for patent applications was signed at Paris on December 11, 1953. Its aim was to "simplify and unify, as far as it is possible, the formalities required by the various national legislations for patent applications"...
(1953) and one on the international classification of patent
European Convention on the International Classification of Patents for Invention
The European Convention on the International Classification of Patents for Invention was signed on December 19, 1954 in Paris, France by members of the Council of Europe. It entered into force on August 1, 1955 and it was denounced by all Parties and ceased to be in force as from February 18, 1999....
(1954). The Council's Committee then carried on its work on substantive patent law, resulting in the signature of the Strasbourg Patent Convention in 1963.
In 1973, the Munich Diplomatic Conference for the setting up of a European System for the Grant of Patents took place and the Convention was then signed in Munich (the Convention is sometimes known as the Munich Convention). The signature of the Convention was the accomplishment of a decade
1960s
The 1960s was the decade that started on January 1, 1960, and ended on December 31, 1969. It was the seventh decade of the 20th century.The 1960s term also refers to an era more often called The Sixties, denoting the complex of inter-related cultural and political trends across the globe...
-long discussion during which Kurt Haertel, considered by many as the father of the European Patent Organisation, and François Savignon played a decisive role.
The Convention entered into force on 7 October 1977 for the following first countries: Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
(then West Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
), France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Luxembourg
Luxembourg
Luxembourg , officially the Grand Duchy of Luxembourg , is a landlocked country in western Europe, bordered by Belgium, France, and Germany. It has two principal regions: the Oesling in the North as part of the Ardennes massif, and the Gutland in the south...
, Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
and United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, and on 1 May 1978 for Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
. However, the first patent applications were filed on 1 June 1978 (date fixed by the Administrative Council which held its first meeting on 19 October 1977). Subsequently, other countries have joined the EPC.
The EPC is separate from the European Union (EU), and its membership is different; Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
, Liechtenstein
Liechtenstein
The Principality of Liechtenstein is a doubly landlocked alpine country in Central Europe, bordered by Switzerland to the west and south and by Austria to the east. Its area is just over , and it has an estimated population of 35,000. Its capital is Vaduz. The biggest town is Schaan...
, Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
, Monaco
Monaco
Monaco , officially the Principality of Monaco , is a sovereign city state on the French Riviera. It is bordered on three sides by its neighbour, France, and its centre is about from Italy. Its area is with a population of 35,986 as of 2011 and is the most densely populated country in the...
, Iceland
Iceland
Iceland , described as the Republic of Iceland, is a Nordic and European island country in the North Atlantic Ocean, on the Mid-Atlantic Ridge. Iceland also refers to the main island of the country, which contains almost all the population and almost all the land area. The country has a population...
, Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
, Croatia
Croatia
Croatia , officially the Republic of Croatia , is a unitary democratic parliamentary republic in Europe at the crossroads of the Mitteleuropa, the Balkans, and the Mediterranean. Its capital and largest city is Zagreb. The country is divided into 20 counties and the city of Zagreb. Croatia covers ...
, the Republic of Macedonia
Republic of Macedonia
Macedonia , officially the Republic of Macedonia , is a country located in the central Balkan peninsula in Southeast Europe. It is one of the successor states of the former Yugoslavia, from which it declared independence in 1991...
, San Marino
San Marino
San Marino, officially the Republic of San Marino , is a state situated on the Italian Peninsula on the eastern side of the Apennine Mountains. It is an enclave surrounded by Italy. Its size is just over with an estimated population of over 30,000. Its capital is the City of San Marino...
, Albania
Albania
Albania , officially known as the Republic of Albania , is a country in Southeastern Europe, in the Balkans region. It is bordered by Montenegro to the northwest, Kosovo to the northeast, the Republic of Macedonia to the east and Greece to the south and southeast. It has a coast on the Adriatic Sea...
and Serbia
Serbia
Serbia , officially the Republic of Serbia , is a landlocked country located at the crossroads of Central and Southeast Europe, covering the southern part of the Carpathian basin and the central part of the Balkans...
are members of the EPO but are not members of the EU. The Convention is, as of October 2010, in force in 38 countries. Serbia became the 38th state on 1 October 2010.
In addition to the Contracting States, States may also conclude a cooperation agreement with the EPO, known as an extension agreement. The state then becomes "extension state", which means European patents granted by the EPO may be extended to those countries by the payment of additional fees and completion of certain formalities. As of October 2010, Bosnia and Herzegovina
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...
, and Montenegro
Montenegro
Montenegro Montenegrin: Crna Gora Црна Гора , meaning "Black Mountain") is a country located in Southeastern Europe. It has a coast on the Adriatic Sea to the south-west and is bordered by Croatia to the west, Bosnia and Herzegovina to the northwest, Serbia to the northeast and Albania to the...
have extension agreements with the EPO so that, in effect, these states can be designated in a European patent application.
A diplomatic conference was held in November 2000 in Munich to revise the Convention, amongst other things to integrate in the EPC new developments in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and to add a level of judicial review of the Boards of Appeal
Appeal procedure before the European Patent Office
Decisions of the first instances of the European Patent Office can be appealed, i.e. challenged, before the Boards of Appeal of the EPO, in a judicial procedure , as opposed to an administrative procedure. These boards act as the final instances in the granting and opposition procedures before the...
decisions. The revised text, informally called the EPC 2000
EPC 2000
The EPC 2000 or European Patent Convention 2000 is the version of the European Patent Convention as revised by the Act Revising the Convention on the Grant of European Patents signed in Munich on November 29, 2000. On June 28, 2001, the Administrative Council of the European Patent Organisation...
, entered into force on 13 December 2007.
Legal nature and content
The European Patent Convention is "a special agreement within the meaning of Article 19 of the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883 and last revised on 14 July 1967, and a regional patent treaty within the meaning of Article 45, paragraph 1, of the Patent Cooperation TreatyPatent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
of 19 June 1970."
The content of the Convention includes several texts in addition to the main 178 articles. These additional texts, which are integral parts of the Convention, are
- the "Implementing Regulations to the Convention on the Grant of European patents", commonly known as the "Implementing Regulations";
- the "Protocol on Jurisdiction and the recognition of decisions in respect of the right to the grant of a European patent", commonly known as the "Protocol on Recognition". This protocol deals with the right to the grant of a European patent but exclusively applies to European patent applications.
- the "Protocol on Privileges and Immunities of the European Patent Organisation", commonly known as the "Protocol on Privileges and Immunities";
- the "Protocol on the Centralisation of the European Patent System and on its Introduction", commonly known as the "Protocol on Centralisation";
- the "Protocol on the Interpretation of Article 69 of the Convention".
Substantive patent law
One of the most important articles of the Convention, , entitled "Patentable inventionInvention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
s", states:
- "European patents shall be granted for
- any inventions, in all fields of technology,
- providing that they are newNovelty under the European Patent ConventionUnder the European Patent Convention , European patents shall be granted for inventions which inter alia are new. The central legal provision explaining what this means, i.e. the central legal provision relating to the novelty under the EPC, is . Namely, "an invention can be patented only if it is...
, - involve an inventive stepInventive step under the European Patent ConventionUnder the European Patent Convention , European patents shall be granted for inventions which inter alia involve an inventive step. The central legal provision explaining what this means, i.e. the central legal provision relating to the inventive step under the EPC, is...
, - and are susceptible of industrial applicationIndustrial applicabilityIn patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this...
."
This article constitutes the "fundamental provision of the EPC which governs the patentability of inventions".
However, the EPC provides further indications on what is patentable. There are exclusions under Article 52(2) and (3) EPC and exclusions under Article 53 EPC.
First, discoveries
Discovery (observation)
Discovery is the act of detecting something new, or something "old" that had been unknown. With reference to science and academic disciplines, discovery is the observation of new phenomena, new actions, or new events and providing new reasoning to explain the knowledge gathered through such...
, scientific theories
Theory
The English word theory was derived from a technical term in Ancient Greek philosophy. The word theoria, , meant "a looking at, viewing, beholding", and referring to contemplation or speculation, as opposed to action...
, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, programs for computers and presentations of information are not regarded as inventions and are excluded from patentability only to the extent that the invention relates to those areas as such. This is "a negative, non-exhaustive list of what should not be regarded as an invention within the meaning of Article 52(1) EPC." (For further information, see also: Software patents under the EPC
Software patents under the European Patent Convention
The patentability of software, computer programs and computer-implemented inventions under the European Patent Convention is the extent to which subject matter in these fields is patentable under the Convention on the Grant of European Patents of October 5, 1973...
).
The second set of exclusions, or exceptions, include
- inventions contrary to "ordre public" or morality,
- plant or animal varieties and essentially biological processes for the production of plants and animals, and
- methods for treatment of the human or animal body by surgerySurgerySurgery is an ancient medical specialty that uses operative manual and instrumental techniques on a patient to investigate and/or treat a pathological condition such as disease or injury, or to help improve bodily function or appearance.An act of performing surgery may be called a surgical...
or therapy, and diagnosticMedical diagnosisMedical diagnosis refers both to the process of attempting to determine or identify a possible disease or disorder , and to the opinion reached by this process...
methods practised on the human or animal body, which have been excluded for "socio-ethical considerations and considerations of public healthPublic healthPublic health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals" . It is concerned with threats to health based on population health...
".
Unified prosecution phase
The Convention also includes provisions setting out filing requirements of European applications, the procedure up to grant, the opposition procedure and other aspects relating to the prosecution of patent applications under the Convention.European patent applications may be filed in any official language of an EPC contracting state (subject to certain requirements), but patent applications are prosecuted in the three official languages of the EPO - English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
, French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
and German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
(if an application is filed in a language other than the official languages, a translation must be filed into one of the three. The filing fee is reduced to offset the additional cost of the translation). The official language of filing (or of the translation) is adopted as the "language of proceedings" and is used by the EPO for communications.
European patent applications are prosecuted
Patent prosecution
Patent prosecution describes the interaction between applicants and their representatives, and a patent office with regard to a patent, or an application for a patent...
in a similar fashion to most patent systems - the invention is searched and published, and subsequently examined for compliance with the requirements of the EPC.
During the prosecution phase, a European patent is a single regional proceeding, and "the grant of a European patent may be requested for one or more of the Contracting States." An applicant for a European patent designates those Contracting States in which protection for the invention
Invention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
is desired, and the designations need to be "confirmed" later during the procedure through the payment of designation fees. Once granted by the EPO, a European patent comes into existence effectively as a group of national patents in each of the designated Contracting States.
Opposition
There are only two types of centrally executed procedures after grant, the opposition procedure and the limitation and revocation proceduresLimitation and revocation procedures before the European Patent Office
In European patent law, the limitation and revocation procedures before the European Patent Office are post-grant, ex parte, administrative procedures allowing any European patent to be centrally limited by an amendment of the claims or revoked, respectively. These two procedures were introduced...
. The opposition procedure, governed by the EPC, allows third parties to file an opposition against a European patent within 9 months of the date of grant of that patent. It is a quasi-judicial
Quasi-judicial body
A quasi-judicial body is an individual or organization which has powers resembling those of a court of law or judge and is able to remedy a situation or impose legal penalties on a person or organization.-Powers:...
process, subject to appeal, which can lead to maintenance, maintenance in amended form or revocation of a European patent. Simultaneously to the opposition, a European patent may be the subject of litigation at a national level (for example an infringement dispute). National courts may suspend such infringement proceedings pending outcome of the opposition proceedings to avoid proceedings running in parallel and the uncertainties that may arise from that.
Grant, effect and need for translations
In contrast to the unified, regional character of a European patent application, the granted European patent does not comprise, in effect, any such unitary character, except for the opposition procedure. In other words, one European patent in one Contracting State is effectively independent of the same European patent in each other Contracting State, except for the opposition procedure.A European patent confers rights on its proprietor, in each Contracting State in respect of which it is granted, from the date of publication of the mention of its grant in the European Patent Bulletin
European Patent Bulletin
The European Patent Bulletin is a weekly trilingual publication of the European Patent Office , generally issued every Wednesday. It contains "entries made in the Register of European Patents, as well as other particulars, the publication of which is prescribed by [the European Patent Convention ]...
. That is also the date of publication of the B1 document, i.e. the European patent specification. This means that the European patent is granted and confers rights in all its designated Contracting States at the date of mention of the grant, whether or not a prescribed translation is filed with a national patent office later on (though the right may later be deemed never to have existed in any particular State if a translation is not subsequently filed in time, as described below).
A translation of a granted European patent must be filed in some EPC Contracting States to avoid loss of right. Namely, in the Contracting States which have "prescribe[d] that if the text, in which the European Patent Office intends to grant a European patent (...) is not drawn up in one of its official languages, the applicant for or proprietor of the patent shall supply to its central industrial property office a translation of this text in one of its official languages at his option or, where that State has prescribed the use of one specific official language, in that language". The European patent is void ab initio in a designated Contracting State where the required translation (if required) is not filed within the prescribed time limit after grant. In other Contracting States, no translation needs to be filed, for example in Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
if the European patent is in English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
. In those Contracting States where the London Agreement
London Agreement (2000)
The London Agreement, formally the Agreement on the application of Article 65 of the Convention on the Grant of European Patents and sometimes referred to as the London Protocol, is a patent law agreement concluded in London on 17 October 2000 and aimed at reducing the translation costs of European...
is in force the requirement to file a translation of the European patent has been entirely or partially waived. If a translation is required, a fee covering the publication of said translation may be due as well.
Enforcement and validity
Almost all attributes of a European patent in a Contracting State, i.e. ownership, validity, and infringement, are determined independently under respective national law, except for the opposition procedure, limitation procedure, and revocation procedure as discussed above. Though the EPC imposes some common limits, the EPC expressly adopts national law for interpretation of all substantive attributes of a European patent in a Contracting State, with a few exceptions. Thus, almost all post-grant proceedings - including renewal, revocation, and infringement enforcementPatent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
are determined under national law.
Infringement
Patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
is remitted almost entirely to national law and to national courts. In one of its very few substantive interventions into national law, the EPC requires that national courts must consider the "direct product of a patented process" to be an infringement. The "extent of the protection" conferred by a European patent is determined primarily by reference to the claims of the European patent (rather than by the disclosure of the specification and drawing
Patent drawing
A patent application or patent may contain drawings, also called patent drawings, illustrating the invention, some of its embodiments , or the prior art...
s, as in some older patent systems), though the description and drawings are to be used as interpretive aids in determining the meaning of the claims. A "Protocol on the Interpretation of Article 69 EPC" provides further guidance, that claims are to be construed using a "fair" middle position, neither "strict, literal" nor as mere guidelines to considering the description and drawings, though of course even the protocol is subject to national interpretation. The authentic text of a European patent application and of a European patent are the documents in the language of the proceedings.
All other substantive rights attached to a European patent in a Contracting State, such as what acts constitute infringement (indirect and divided infringement, infringement by equivalents, extraterritorial infringement, infringement outside the term of the patent with economic effect during the term of the patent, infringement of product claims by processes for making or using, exports, assembly of parts into an infringing whole, etc.), the effect of prosecution history on interpretation of the claims, remedies for infringement or bad faith enforcement (injunction, damages, attorney fees, other civil penalties for willful infringement, etc.), equitable defenses, coexistence of an EP national daughter and a national patent for identical subject matter, ownership and assignment, extensions to patent term for regulatory approval, etc., are expressly remitted to national law.
For a period in the late-1990's, national courts issued cross-border injunctions covering all EP jurisdictions, but this has been limited by the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
. In two cases in July 2006 interpreting Articles 6.1 and 16.4 of the Brussels Convention
Brussels Regime
The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union and the European Free Trade Association...
, the European Court of Justice held that European patents are national rights that must be enforced nationally, that it was "unavoidable" that infringements of the same European patent have to be litigated in each relevant national court, even if the lawsuit is against the same group of companies, and that cross-border injunctions are not available.
Validity is also remitted largely to national law and national courts. limits the application of national law to only the following grounds of invalidity, and specifies that the standards for each ground are those of national law:
- if the subject-matter of the European patent is not patentable within the terms of Articles 52 to 57 EPC (see "Substantive patent law" section above)
- if the disclosure does not permit the invention to be carried out by a person skilled in the artDisclosure of the invention under the European Patent ConventionArticle 83 of the European Patent Convention relates to the disclosure of the invention under the European Patent Convention. It prescribes that a European patent application must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in...
- if amendments have been madeAmendments under the European Patent ConventionArticle 123 of the European Patent Convention relates to the amendments under the EPC, i.e. the amendments to a European patent application or patent, and notably the conditions under which they are allowable...
such that the subject-matter extends beyond the content of the application as filed - if the claims have been broadened post-grant, e.g. in opposition proceedings
- an improper proprietor
A national court may partially invalidate a European patent in a Contracting State, e.g., by revoking only some claims, or by permitting amendment to the claims, the description or the drawings, as allowed by national law.
A European patent is also non-unitary in that it may be revoked in one Contracting State while maintained in another. However, a national court in one Contracting State may not revoke a European patent in another Contracting State.
EPO Boards of Appeal decisions are not precedential at all upon national courts, which have exclusive jurisdiction on validity and infringement after a European patent has been granted (except during the 9 month opposition period, which can only relate to validity). However, national courts will tend to take note, and may find 'persuasive', decisions of the EPO Boards, though they can disagree with them.
The EPC requires all jurisdictions to give a European patent a term of 20 years from the filing date, the filing date being the actual date of filing an application for a European patent or the date of filing of an international application under the PCT
Patent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
designating the EPO. The filing date is not necessarily the priority date
Priority right
In patent, industrial design rights and trademark laws, a priority right or right of priority is a time-limited right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively...
, which can be up to one year earlier. The term of a granted European patent may be extended under national law if national law provides term extension to compensate for pre-marketing regulatory approval. For EEA
European Economic Area
The European Economic Area was established on 1 January 1994 following an agreement between the member states of the European Free Trade Association and the European Community, later the European Union . Specifically, it allows Iceland, Liechtenstein and Norway to participate in the EU's Internal...
member states this is by means of a supplementary protection certificate
Supplementary protection certificate
In European Union member countries, a supplementary protection certificate is a sui generis, extension of a patent under a specific, different, set of right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, and herbicides...
.
Relation with the Patent Cooperation Treaty
A European patent application may result from the filing of an international application under the Patent Cooperation TreatyPatent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
(PCT) and the entry into "European regional phase". The European patent application is therefore said to be a "Euro-PCT application" and the EPO is said to act as a designated or elected Office. In case of conflict between the provisions of the EPC and those of the PCT, the provisions of the PCT and its Regulations prevail over those of the EPC.
Eleven EPC Contracting States, namely Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, Cyprus
Cyprus
Cyprus , officially the Republic of Cyprus , is a Eurasian island country, member of the European Union, in the Eastern Mediterranean, east of Greece, south of Turkey, west of Syria and north of Egypt. It is the third largest island in the Mediterranean Sea.The earliest known human activity on the...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Greece
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
, Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Latvia
Latvia
Latvia , officially the Republic of Latvia , is a country in the Baltic region of Northern Europe. It is bordered to the north by Estonia , to the south by Lithuania , to the east by the Russian Federation , to the southeast by Belarus and shares maritime borders to the west with Sweden...
, Malta
Malta
Malta , officially known as the Republic of Malta , is a Southern European country consisting of an archipelago situated in the centre of the Mediterranean, south of Sicily, east of Tunisia and north of Libya, with Gibraltar to the west and Alexandria to the east.Malta covers just over in...
, Monaco
Monaco
Monaco , officially the Principality of Monaco , is a sovereign city state on the French Riviera. It is bordered on three sides by its neighbour, France, and its centre is about from Italy. Its area is with a population of 35,986 as of 2011 and is the most densely populated country in the...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
and Slovenia
Slovenia
Slovenia , officially the Republic of Slovenia , is a country in Central and Southeastern Europe touching the Alps and bordering the Mediterranean. Slovenia borders Italy to the west, Croatia to the south and east, Hungary to the northeast, and Austria to the north, and also has a small portion of...
have "closed their national route". This means that it is no longer possible to obtain a national patent protection through the international (PCT) phase without entering into the regional European phase and obtaining a European patent.
See also
See List of patent legal concepts for articles on various legal aspects of patents, including special types of patents and patent applications.- European patent lawEuropean patent lawEuropean patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations....
- European Patent Litigation AgreementEuropean Patent Litigation AgreementThe draft European Patent Litigation Agreement , or formally the Draft Agreement on the establishment of a European patent litigation system, is a proposed patent law agreement aimed at creating an "optional protocol to the European Patent Convention which would commit its signatory states to an...
(EPLA) - Strasbourg ConventionConvention on the Unification of Certain Points of Substantive Law on Patents for InventionThe Convention on the Unification of Certain Points of Substantive Law on Patents for Invention, also called Strasbourg Convention or Strasbourg Patent Convention, is a multilateral treaty signed by Member States of the Council of Europe on November 27, 1963 in Strasbourg, France...
(1963) - Vienna Convention on the Law of TreatiesVienna Convention on the Law of TreatiesThe Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
(1969) - London Agreement (2000)London Agreement (2000)The London Agreement, formally the Agreement on the application of Article 65 of the Convention on the Grant of European Patents and sometimes referred to as the London Protocol, is a patent law agreement concluded in London on 17 October 2000 and aimed at reducing the translation costs of European...
See also "European Patent Organisation" box below.
Further reading
- Martijn van Empel, The Granting of European Patents, Introduction to the Convention on the Grant of European Patents, Munich, 5 October 1973, Kluwer Academic Publishers Group, 1975, ISBN 90-286-0365-4
- Gerald Paterson, The European Patent System: The Law and Practice of the European Patent Convention, Sweet & MaxwellSweet & MaxwellSweet & Maxwell is a British publisher specialising in legal publications. It joined the Associated Book Publishers in 1969; ABP was purchased by the Thomson Organization in 1987, and is now part of Thomson Reuters. Its British group includes W. Green in Scotland and Round Hall in Ireland...
, second edition, 2001, ISBN 0-421-58600-1 - Derk Visser, The Annotated European Patent Convention, H. Tel Publisher bv
External links
- The European Patent Convention
- Legal texts from the European Patent Office (EPO), including the text of the European Patent Convention.