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 in countries which are party to the European Patent Convention.

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). 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.^[1] 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 according to different national legislations and procedures.^[2]

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 granted by national patent offices are available,^[3] and may possibly –if permitted by national law and, if so, to the extent permitted by national law^[4]– co-exist within a given jurisdiction. Utility models, referred to as "Gebrauchsmuster" in Germany and Austria, are available in some countries.

Patent applications can be filed at the relevant national patent office or at the European Patent Office. Alternatively, an international application may be filed under the Patent Cooperation Treaty (PCT) and later nationalised in the desired countries or at the EPO. However, Belgium, Cyprus, France, Greece, Ireland, Italy, Latvia, Malta, Monaco, the Netherlands, and Slovenia have "closed their national route" meaning that it is no longer possible to nationalise an international application in those countries directly and protection can only be obtained via the EPO.^[5][6]

European patents

A European patent is the product of a unified grant procedure 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.^[7] 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.^[8] 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. It can be cheaper and tactically advantageous to apply for a few national patents rather than for a European patent at the European Patent Office.^[9]

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), Spain and Italy (modello di utilità), Finland ("hyödyllisyysmalli")^[10] (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 a so-called "bifurcation system"), 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."^[11]

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."^[12]

European Union patent

The creation of a community patent system, which would lead to a single unitary patent in the European Union, has been debated since the 1970s, and agreement in principle was reached in 2012 between all European Union Member States except Italy and Spain. The system would be centered around the languages of the European Patent Convention and have a common court (Unified Patent Court) with exclusive competence on patent issues in the 25 countries.

On December 11, 2012, the European Parliament adopted two draft regulations on the so-called unitary patent. This patent type should help SMEs cut costs for patenting inventions and should thus increase the overall competitiveness. Besides the two regulations, a specialised court with exclusive jurisdiction concerning patent infringement and validity questions - the Unified Patent Court (UPC) - is expected to be established soon. Once the unitary patent and the Patent Court have become effective, inventors can request unitary patents. This new system is meant to come into effect by 2014.^[13] Many patent attorneys, however, do fear that this new regulation would result in an even more complicated and expensive patent system.^[14]

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 (which entered into force in 2008) and the European Patent Litigation Agreement (EPLA) (which never entered into force).

Statistics

Based on data from Germany, France, the Netherlands, and the UK, the Centre for European Economic Research (ZEW) found that German courts handle by far the largest number of patent litigation cases.^[15]

See also

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

References

Further reading

• Patent Litigation in Europe, Discussion Paper No. 13-072 by the Centre for European Economic Research (ZEW)
• Bruno van Pottelsberghe, Lost property: The European patent system and why it doesn't work, Bruegel Blueprint Series, Volume IX, 29 June 2009, ISBN 978-90-78910-12-1