European Patent Convention: Meaning (information, definition, explanation, facts)

The European Patent Convention (EPC) or Convention on the Grant of European Patents of 5 October 1973 is a legal text instituting the European Patent Organisation and the system according to which European patents are granted.

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.

Structure

The EPC is separate from the European Union, and its membership is different: Switzerland, Liechtenstein, Turkey, Monaco, Bulgaria and Romania are members of the EPO but are not members of the EU, while the opposite is true for Latvia, Lithuania 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 branch at The Hague 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 those countries (such as the United Kingdom) in which it is an offence for a UK resident to file a patent application abroad without obtaining clearance through the UK Patent Office first.

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 application process. 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, goverend by the EPC, which allows third parties to oppose the grant of a European Patent. It is a quasijudicial 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.

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 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).

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) and Poland (March 1, 2004).

The Convention is now (as of March 14, 2004) in force in 28 countries.

The content of the Convention includes several texts in addition to the main 178 articles. These additional texts are "the Implementing Regulations", "the Protocol on Recognition", "the Protocol on Privileges and Immunities", "the Protocol on Centralisation" and "the Protocol on the Interpretation of Article 69".

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 above subject-matter or activity are taken 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). Other exceptions include methods for treatment of the human body by surgery, inventions contrary to "ordre public" or morality and plant or animal varieties (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 endoresement of one's commercial plans.

Procedural provisions

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

Cf. European Patent Organisation.