European patent law


European patent law

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, eleven EPC Contracting States (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. (For Malta, source: "European Patent Office web site, [http://www.european-patent-office.org/news/info/2007_01_02_e.htm "Accession to the PCT by Malta (MT)"] , Information from the European Patent Office, January 2, 2007; for Latvia, source: [http://www.wipo.int/edocs/pctndocs/en/2007/pct_news_2007_4.pdf "Latvia: Closing of the National Route via the PCT"] , PCT Newsletter of April 2007). ] 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 from those forming the European Union. [EPO web site, List of Contracting States of the European Patent Organisation: [http://www.european-patent-office.org/epo/members.htm "EPO member states"] . Retrieved on September 7, 2006. ] 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.

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

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

A European patent is the product of a unified prosecution phase before the European Patent Office (EPO) under procedures established by the European Patent Convention (EPC). A European patent is a regional, non-unitary patent. Some EPC Contracting States require the patentee to file a full translation of the granted European patent with the national patent office of the State if the text of the European patent as granted is not in one of their official languages. If the required translation is not filed, the European patent is deemed to have no effect from the outset in that State. [ EPC Article|65|3 ] The London Agreement, which entered into force on May 1, 2008, significantly reduces the number of required translations.

The European patent can be revoked under the laws of a Contracting State on certain grounds (specified in EPC Articles 138 and 139) with effect only in that State. A central time-limited opposition procedure and central limitation and revocation procedures before the EPO are available however. The opposition procedure allows a third party, i.e. any person except the patent proprietor, to oppose a granted European patent in an attempt to have the EPO reconsider the grant of the patent and possibly revoke or amend the patent. The opposition procedure may only be initiated within nine months of the grant of the European patent. [ EPC Article|99 ] The limitation and revocation procedures allow the patent proprietor to centrally request the limitation or revocation of his own European patent.

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.

In the United Kingdom, for example, the Patents Act 1977 and the Patents Act 2004 establish the law relating to patents including filing, examination, grant, infringement, revocation, assignment. UK law is in many ways similar to the European Patent Convention (EPC) (although the EPC deals with very few post-grant activities).

Utility models

In Europe, utility models are available in Austria ("Gebrauchsmuster"), France ("certificat d'utilité"), Germany ("Gebrauchsmuster"), and Spain (this list is however "non-exhaustive"). The term of a utility model is usually shorter than the term of a patent.

Differences and similarities between national laws

Substantive patent law has been harmonized to a certain extent across national laws in Europe, notably upon signature of the Strasbourg Convention of 1963 and the European Patent Convention (EPC) of 1973, and upon entry into force of the TRIPs Agreement. In practice however, the interpretation of common substantive provisions have led to different interpretations in different European countries.

Regarding procedural law, and especially regarding the procedures to examine infringement and validity of patents before national courts, significant differences exist across national laws. For instance, while in Germany validity and infringement of patents are examined by different courts in different procedures, in the United Kingdom the same court is in charge of examining validity and infringement actions. According to Mr Justice Kitchin, a British judge, :"... it is desirable to try infringement and validity issues together, where at all possible. If they are tried separately it is all too easy for the patentee to argue for a narrow interpretation of his claim when defending it but an expansive interpretation when asserting infringement." [ Mr Justice Kitchin, [http://www.bailii.org/ew/cases/EWHC/Patents/2007/600.html "European Central Bank v Document Security Systems Inc."] [2007] EWHC 600 (Pat) (26 March 2007), 88. ]

In this respect, Lord Justice Jacob referred to a comparison reportedly made by Professor Mario Franzosi between a patentee and an Angora cat::"When validity is challenged, the patentee says his patent is very small: the cat with its fur smoothed down, cuddly and sleepy. But when the patentee goes on the attack, the fur bristles, the cat is twice the size with teeth bared and eyes ablaze." [ Lord Justice Jacob, [http://www.bailii.org/ew/cases/EWCA/Civ/2008/192.html "European Central Bank v Document Security Systems Incorporated"] [2008] EWCA Civ 192 (19 March 2008), 5. ]

Community patent

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 principal 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).

Forum shopping, the Brussels Regime and cross-border injunctions

References

See also

* European Union patent law
* Enforcement of European patents
* Brussels Regime, i.e. Brussels Convention, the Lugano Convention, and the Brussels I Regulation (Council Reg (EC) 44/2001)
* Cross-border injunction
* European trade mark law
* Eurasian Patent Convention (EAPC)
* Intellectual property in Romania

External links

* [http://www.lovells.com/Lovells/Publications/ClientNotes/Archive/2005/2041.htm Patent Litigation in Europe] 2005 report by Lovells comparing patent litigation before various EU national courts, and the differences between them.


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