European patent law
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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). <ref> 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. </ref> 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. <ref>EPO web site, List of Contracting States of the European Patent Organisation: EPO member states. Retrieved on September 7, 2006. </ref> 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).
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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).
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[edit] 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 <ref> Utility models, which are available under some national jurisdictions, are also called "petty patents", "utility certificates" or "Gebrauchsmuster" (in Germany and Austria). </ref> granted by national patent offices are available and may co-exist within a given jurisdiction.
[edit] 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 not a conventional patent; rather, it is a regional, non-unitary patent. Most of the EPC contracting States require the patentee to file a full translation of the granted 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, otherwise the patent is deemed to be have no effect from the outset in that State. 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 common opposition proceeding before the EPO is available however.
[edit] 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, the Patents Act 1977 establishes the law under which patents, both UK and EP(UK) are granted. UK applications and patents can derive from:
- direct filing at the UK Patent Office, either with or without a priority declaration from another Paris Convention filing;
- validation via a granted European application designating the UK; or
- direct designation from an international PCT application.
UK patent law is in effect substantially similar to that of the European Patent Convention, although UK patent law covers the effect of and dealings with granted patents (eg. infringement, revocation and post-grant amendments), whereas the EPC does not. There are many differences in procedure regarding obtaining a UK (as opposed to an EP(UK)) patent, although after grant both types of UK patent are dealt with in exactly the same way (see section 77 of the Act). The UK courts and Patent Office have arrived at apparently slight differences in interpretation of patentability of certain subject matter, for instance in the area of patent applications for computer software and business methods (see for example Software patents under United Kingdom patent law), but these differences are often more imagined than real. However, any differences tend to be highlighted at the boundaries of patentability. In general, the UK approach tends towards being more strict at enforcing excluded subject matter.
The EPO, following the Technical Board of Appeal decision of Hitachi (T 258/03), first asks whether the applicant’s claim has any “technical features”. If no, the application is not an invention. Only then are the tests of novelty and obviousness applied. In contrast, the UKPO, following Merrill Lynch's Application [1989] RPC 561 (which itself followed the EPO decision in Vicom (T208/84)), first asks what the “technical contribution” in the applicant’s claim is. If there is none, the application is rejected. The following exercise by which patentability of an application may be decided was devised by the court in CFPH's Applications [2005] EWHC 1589 (Pat):
a. Identify the advance in the art which is said to be new and non-obvious (and susceptible of industrial application); and
b. Determine whether it is both new and not obvious (and susceptible of industrial application) under the description of ‘an invention’ (in the sense of Article 52).
In view of this decision, and Halliburton Energy Services Inc v Smith International (North Sea) [2005] EWHC 1623, the UK Patent Office changed its examination practice in this area, and has published a practice note on this subject. It is the Patent Office's view that the effect of the difference in practice between the EPO approach and the UK approach is minimal. However, it is at least arguable as to whether the Patent Office is following their own stated approach, after recent apparently conflicting decisions such as Raytheon, Sun Microsystems and ARM.
[edit] Utility models
Utility models are available in Austria (Gebrauchsmuster), France ("certificat d'utilité"), Germany (Gebrauchsmuster), Spain, (non-exhaustive). The term of a utility model is usually shorter than the term of a patent.[edit] Forum shopping, the Brussels Regime and cross-border injunctions
[edit] References
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[edit] External links
- Patent Litigation in Europe 2005 report by Lovells comparing patent litigation before various EU national courts, and the differences between them.
[edit] See also
- Brussels Regime, i.e. Brussels Convention, the Lugano Convention, and the Brussels I Regulation (Council Reg (EC) 44/2001)
- European trade mark law
- Japanese patent law
- United States patent law
