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European Patent Convention

From Academic Kids

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 provides an autonomous legal system according to which European patents are granted. Once granted, a European patent becomes a bundle of nationally-enforceable patents, except for the provision of a time-limited, unified, post-grant opposition procedure.

There is currently no single 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 and the prospect of a single EU-wide patent is receding.

The EPC is separate from the European Union, and its membership is different: Switzerland, Liechtenstein, Turkey, Monaco, Bulgaria, Romania and Iceland are members of the EPO but are not members of the EU, while the opposite is true for Latvia and Malta. 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 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. This latter provision is important in countries such as the United Kingdom, in which it is an offence for a UK resident to file a patent application for inventions in certain sensitive areas abroad without obtaining clearance through the UK Patent Office first.

Contents

History

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. The signature of the Convention was the accomplishment of a decade-long discussion during which Kurt Härtel, considered by many as the father of the European Patent Organisation, and François Savignon played a decisive role.

The Convention entered into force on October 7, 1977 for the following first countries: Belgium, Germany (then West Germany), France, Luxembourg, Netherlands, Switzerland and United Kingdom, and on May 1, 1978 for Sweden. However, the first patent applications were filed on June 1, 1978 only (date fixed by the Administrative Council which held its first meeting on October 19, 1977).

Subsequently, the Convention entered into force for Italy (December 1, 1978), Austria (May 1, 1979), Liechtenstein (April 1, 1980), Greece and Spain (October 1, 1986), Denmark (January 1, 1990), Monaco (December 1, 1991), Portugal (January 1, 1992), Ireland (August 1, 1992), Finland (March 1, 1996), Cyprus (April 1, 1998), Turkey (November 1, 2000), Bulgaria, Czech Republic, Estonia and Slovakia (July 1, 2002), Slovenia (December 1, 2002), Hungary (January 1, 2003), Romania (March 1, 2003), Poland (March 1, 2004), Iceland (November 1, 2004) and Lithuania (December 1, 2004).

The Convention is now (as of April 2005) in force in 30 countries. On July 1, 2005, the Convention will enter into force in Latvia as well.

In addition, the following 6 states have concluded extension agreements with the EPO, so that in effect, these states can be designated as well in a European patent application: Albania, Bosnia and Herzegovina, Croatia, Latvia, Former Yugoslav Republic of Macedonia, and Serbia and Montenegro (formerly known as the Federal Republic of Yugoslavia).

A diplomatic conference was held in November 2002 in Munich to revise the Convention, amongst other things to integrate in the EPC new developments in international law, especially those of the TRIPs Agreement and of the Patent Law Treaty, and to add a level of judicial review of the Boards of Appeal decisions. The revised Convention, known as the EPC 2000, is not entered into force yet. Twelve Contracting States have ratified or accessed to the EPC 2000, as of April 2005 [1] (http://patlaw-reform.european-patent-office.org/epc2000/status/), while fifteen countries need to deposit their instrument of ratification or accession for the EPC 2000 to enter into force.

Content

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" or, in full, the "Implementing Regulations to the Convention on the Grant of European patents";
  • the "Protocol on Recognition" or, in full, the "Protocol on Jurisdiction and the recognition of decisions in respect of the right to the grant of a European patent";
  • the "Protocol on Privileges and Immunities" or, in full, the "Protocol on Privileges and Immunities of the European Patent Orgnaisation";
  • the "Protocol on Centralisation" or, in full, the "Protocol on the Centralisation of the European Patent System and on its Introduction"; and
  • the "Protocol on the Interpretation of Article 69 of the Convention".

Substantive patent law and procedural provisions form very important parts of the EPC.

Substantive patent law

This part of the Convention includes provisions on patentability, provisions related to the right to a European patent and more.

One of the most important article of the Convention, Article 52(1), entitled "Patentable inventions", states: "European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step". This constitutes the basic patentability provision under the EPC.

However, the EPC provides further indications on what is patentable, by introducing exceptions. There are exceptions by virtue of the nature of the patent system (Article 52(2) and (3)) and exceptions by virtue of policy (Articles 52(4) and 53). 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 (exceptions by virtue of the nature of the patent system) are excluded from patentability only to the extent that the invention relates to those areas as such. These exceptions have been introduced as a way to illustrate what cannot be patentable due to the nature of the patent system (a patentable subject-matter should usually be directed to some physical product or process). The European Patent Office interprets this as requiring that the features providing the inventive step must be outside those areas.

Other exceptions include methods for treatment of the human body by surgery or therapy, diagnostic methods practised on the human or animal body (Article 52(4)), inventions contrary to "ordre public" or morality (Article 53(a)) and plant or animal varieties and essentially biological processes for the production of plants an animals (Article 53(b)) (exceptions by virtue of policy). The EPO is reluctant to use the public policy exceptions as it believes that this is best left to national law - being granted a patent should not be viewed as an endorsement of one's commercial plans.

Procedure

The Convention also includes filing requirements provisions, provisions regarding the procedure up to grant, the opposition procedure, appeals and more.

European patent applications can be filed in any of English, French, or German. This language is then designated as the "language of proceedings" for the subsequent procedure. A national of a country in which none of these languages is official would be at a disadvantage if this were the only provision so such people (or companies) can file in their own language and file a translation subsequently. Fee reductions are also available in these circumstances to offset the extra translation cost.

On grant, the European patent must be brought into effect in the European countries in which protection is actually required. In some countries, if the language of proceedings (the language in which the patent was published) is an official language, then the process is a formality or the patent is automatically effective without procedural steps. Otherwise, a translation into a local language must be filed.

At this point, the European patent is effectively treated as a bundle of national rights, and national law applies. This has particular relevance to renewal, revocation, and infringement.

The only centrally executed procedure after grant is the opposition procedure, governed by the EPC, which allows third parties to oppose the European patent granted. It is a quasi-judicial process, subject to appeal, which can lead to amendment or even revocation of a European patent. It has often arisen that a European patent has been subject of litigation at a national level (for example an infringement dispute) and opposition proceedings in the EPO simultaneously. This can lead to legally difficult and expensive situations.

The European patent system covers an area in which many languages are spoken. To obtain patent protection in individual countries separately would be logistically difficult, and would lead to very high initial costs to prepare application documents in each language. The European Patent Convention delays the need to obtain these translations until after grant of a European patent, thus ensuring that a patentee is able to assess realistically the need to pay for so many translations.

In common with other patent application processes, the application procedure includes a prior art search and a patentability examination before a patent can be granted.

Contracting States

Cf. European Patent Organisation.

References

  • 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 9028603654
  • Gerald Paterson, The European Patent System: The Law and Practice of the European Patent Convention, Sweet & Maxwell, second edition, 2001, ISBN 0421586001
  • Singer & Stauder, The European Patent Convention - A Commentary, Sweet & Maxwell, 2003, ISBN 0421831502
  • Derk Visser, The Annotated European Patent Convention, H. Tel, Publisher, 2003 [2] (http://www.htelpublisher.com/)
  • Jelle Hoekstra, References to the EPC, Hoekstra Document Services, [3] (http://www.hoekstradoc.nl/)
  • Stephan C. Fritz, Elisabeth K. Grünbeck, Ali Hijazi, Key to the EPC, Verlag E. Grünbeck, ISBN 3980998010 [4] (http://www.key2epc.com/)

See also

External links


de:Europäisches Patentübereinkommen

nl:Europees Octrooiverdrag

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