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European patent law

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European patent law
European Patent Organisation
Centralization and harmonization
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European 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.

Patents having effect in European states may be obtained either nationally, via national patent offices, or via a centralised patent prosecution process at the European Patent Office (EPO). In both cases, the application procedure can either be direct or through the international filing procedure provided for by the Patent Cooperation Treaty (PCT). However, nine EPC Contracting States (Belgium, Cyprus, France, Greece, Ireland, Italy, 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. The EPO is not a body of the European Union and the states contracting to the European Patent Convention (the legal basis for the EPO) are different to those forming the European Union. List of members of the European Patent Organisation [link] A patent granted by the EPO does not lead to a single European Union-wide patent enforceable before one single court, but rather to independent national patents enforceable by national courts.

The creation of a Community Patent system, which would lead to a single unitary patent, has been debated since the 1970s, but those debates have yet to reach agreement on the institution of such a system. The principle problems facing such a system are centered around the language of granted patents and which courts would have jurisdiction. Other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and litigation, namely the London Agreement and the European Patent Litigation Agreement (EPLA).
Patent law

The European patent law is also shaped by international legislations such as the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) and the Patent Law Treaty (PLT).

Contents

Types of patent protection in Europe

A characteristic of European patent law as it stands today is that European patents granted by the European Patent Office (EPO), and patents and utility models Utility models, which are available under some national jurisdictions, are also called "petty patents", "utility certificates" or "Gebrauchsmuster" (in Germany and Austria). granted by national patent offices are available and may co-exist within a given jurisdiction.

European patents

Although the term European patent is used to refer to patents granted by the EPO, such patents are not a unitary right, but a group of essentially independent national patents.

Unified prosecution phase

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." [EPC Art. 3].  An applicant for a European patent designates those Contracting States in which protection for the invention is desired, [EPC Art. 79], and the designations need to be "confirmed" later during the procedure through the payment of designation fees. [EPC Art. 79(2)].  Once granted by the EPO, [EPC Art. 4], a European patent comes into existence as a group of national grants in each of the designated Contracting States. Singer/Stauder, The European Patent Convention, A Commentary, Munich, 2003, under Article 2 The view that a European patent issues as independent national patents in each designated Contracting state is very convenient from a practical point of view. Some however consider this view as incorrect: 

"The view that, after grant, a European patent breaks up into a bundle of national patents in designated Contracting States may appear plausible, but it is incorrect both in law and systematically". 




Opposition period


For nine months after grant, a European patent is subject to a unified, post-grant opposition procedure.



Issue and national grants


Once the opposition period has expired, the unified regional characteristics of a European patent dissolve, and the national grants are essentially independent of each other.  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.   (EP patent has same effect as national patent in "each Contracting State in respect of which it is granted"),  (decision to grant "for the designated Contracting States" is made by the examining division), and    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 the UK and Ireland if the European patent is in English. Luxembourg and Monaco do not require any translation no matter the language in which the European patent is drawn up.  European Patent Office, National law relating to the EPC (12th edition), March 2003, section "Filing of translations of the patent specification under Article 65 EPC", [link]  If a translation is required, a fee covering the publication of said translation may be due as well.   and, regarding the implementation in EPC Contracting States, see European Patent Office, National Law, Chapter IV, Filing of translations of the patent specification under Article 65 EPC [link] 



Enforcement, Infringement and Validity of National Grants of European Patents


Almost all attributes of a national grant of a European patent -- ownership, validity and infringement -- are determined independently under respective national law.  Though the EPC imposes some very broad limits, the EPC expressly adopts national law for interpretation of all substantive attributes of a national daughter of an EP patent, with a few exceptions noted below. E.g., [EPC Art. 2(2)] ("The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless otherwise provided in this Convention."); [EPC Art. 64(1) and (3)] (EP patent conveys "same rights" as national patent, and infringment determined by national law), [EPC Art. 66] (EP filing has same effect as national filing), [EPC Art. 74] (ownership determined under national law).


Infringement is remitted almost entirely to national law and to national courts.  [EPC Art. 64(1)].  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.  [EPC Art. 64(2)].  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 drawings, 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. [EPC Art. 69(1)] A [protocol] to Article 69 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.  E.g., Southco Inc v Dzus, [1992] R.P.C. 299 CA; Improver Corp. v Remington Products Inc [1990] FSR 181.  The authentic text of a European patent application and of a European patent are the documents in the language of the proceedings.  [EPC Art. 70]    Singer/Stauder, The European Patent Convention, A Commentary, Munich, 2003, under Article 2, section "EPC provisions on European patents that take precedence over national law" 


All other substantive rights attaching to each national daughter of an EP patent, 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 daugher 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.  [EPC Art. 2(2)] 


For a period in the late-1990's, national courts issued cross-border injunctions covering all EP jurisdictions, but this has been limited by Articles 28 and 29 relating to the freedom of movement of goods under the Treaty establishing the European Economic Community (Treaty of Rome).  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.  [Gesellschaft für Antriebstechnik  v Lamellen und Kupplungsbau Beteiligungs KG, (European Ct. of Justice 13 July 2006)]; [Roche v Primus, (European Ct. of Justice 13 July 2006)]


Valdity is also remitted largely to national law and national courts.  [EPC Art. 138(1)] 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 invalidate in part a national grant of a European patent, e.g., by revoking only some claims, or by permitting amendment to the claims, the description or the drawings, as allowed by national law.  No national court may invalidate another nationally validated granted European patent.


A European patent is also non-unitary in that it may be revoked in one designated Contracting State while maintained in another.


The EPC requires all jurisdictions to give a European patent a term of 20 years from the filing date [EPC Art. 63(1)], the filing date being the actual date of filing an application for a European patent or the date of filing of a 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, [EPC Art. 63(2)(b)] or by means of a supplementary protection certificate under EEC regulation.



National patents



National patents are available in all European countries. In some European countries, national patents are substantively examined, while in other countries there is no provision for such examination.



Utility models



Utility models are available in Austria (Gebrauchmuster), France, Germany (Gebrauchmuster), Spain, (non-exhaustive).  The term of a utility model is usually shorter than the term of a patent.



Forum shopping, the Brussels Regime and cross-border injunctions




Patent-related EU legislations


Regulations:

Directives:



References

 







See also









 





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