110-546: The European patent with unitary effect , also known as the unitary patent , is a European patent which benefits from unitary effect in the participating member states of the European Union . Unitary effect may be requested by the proprietor within one month of grant of a European patent, replacing validation of the European patent in the individual countries concerned. Infringement and revocation proceedings are conducted before
220-694: A "Euro-PCT application" and the EPO is said to act as a designated or elected Office. In case of conflict between the provisions of the EPC and those of the PCT, the provisions of the PCT and its Regulations prevail over those of the EPC. Twelve EPC Contracting States, namely Belgium , Cyprus , France, Greece , Ireland, Latvia , Malta , Monaco , Montenegro , the Netherlands , San Marino , and Slovenia , have "closed their national route". This means that, for these countries, it
330-564: A "renewable 6-year term, jointly by national governments". The CJEU's specific mission is to ensure that "the law is observed" "in the interpretation and application" of the Treaties of the European Union . To achieve this, it: The composition and functioning of the courts are regulated by the Rules of Procedure. The CJEU was originally established in 1951 as a single court called the Court of Justice of
440-573: A European patent a term of 20 years from the filing date, the filing date being the actual date of filing an application for a European patent or the date of filing of an 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. For EEA member states this
550-517: A European patent are the documents in the language of the proceedings. All other substantive rights attached to a European patent in a Contracting State, 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.),
660-440: A European patent in one Contracting State, i.e. a "national" European patent, is effectively independent of the same European patent in each other Contracting State, except for the opposition, limitation and revocation procedures. The enforcement of a European patent is dealt with by national law. The abandonment, revocation or limitation of the European patent in one state does not affect the European patent in other states. While
770-632: A Unified Patent Court provides the legal basis for the Unified Patent Court (UPC): a patent court for European patents (with and without unitary effect), with jurisdiction in those countries where the Agreement is in effect. In addition to regulations regarding the court structure, it also contains substantive provisions relating to the right to prevent use of an invention and allowed use by non-patent proprietors (e.g. for private non-commercial use), preliminary and permanent injunctions. Entry into force for
880-470: A decisive role. The Convention was officially signed by 16 countries on 5 October 1973. The Convention entered into force on 7 October 1977 for the following first countries: Belgium , Germany (then West Germany ), France, Luxembourg , the Netherlands , Switzerland and the United Kingdom, and on 1 May 1978 for Sweden . However, the first patent applications were filed on 1 June 1978 (date fixed by
990-545: A final deal,.... This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council." The Competitiveness Council met on 30 May and failed to reach agreement. A compromise agreement on the seat(s) of the unified court
1100-547: A legal opinion submitted by the Legal Service of the European Parliament, which affirmed the concerns of MEPs to approve the decision of a recent EU summit to delete said articles as it "nullifies central aspects of a substantive patent protection". A Europe-wide uniform protection of intellectual property would thus not exist with the consequence that the requirements of the corresponding EU treaty would not be met and that
1210-620: A level of judicial review of the Boards of Appeal decisions. The revised text, informally called the EPC 2000 , entered into force on 13 December 2007. Throughout the history of the EPC, some non-contracting States have concluded cooperation agreements with the European Patent Organisation, known as extension or validation agreements. These states then became "extension states" or "validation states", which means that European patents granted by
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#17328517806731320-513: A national patent office of a Contracting State, if the national law of the State so permits. In September 1949, French Senator Henri Longchambon proposed to the Council of Europe the creation of a European Patent Office. His proposal, known as the "Longchambon plan", marked the beginning of the work on a European patent law aimed at a "European patent". His plan was however not found to be practicable by
1430-698: A participant of the unitary patent regulations in September 2015. As of March 2022, neither of the two remaining non-participants in the unitary patent (Spain and Croatia) had requested the European Commission to participate. Although formally the Regulations will apply to all 25 participating states from the moment the UPC Agreement enters into force for the first group of ratifiers, the unitary effect of newly granted unitary patents will only extend to those of
1540-640: A period in the late-1990s, national courts issued cross-border injunctions covering all EP jurisdictions, but this has been limited by the European Court of Justice . 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
1650-542: A place of business on the date of filing the application for the European patent." When the applicant had no domicile in a participating Member State, German law will apply. Ullrich has the criticized the system, which is similar to the Community Trademark and the Community Design , as being "in conflict with both the purpose of the creation of unitary patent protection and with primary EU law." The Agreement on
1760-591: A quarter of all European patents granted during that period. Work on a Community patent started in the 1970s, but the resulting Community Patent Convention (CPC) was a failure. The " Luxembourg Conference on the Community Patent" took place in 1975 and the Convention for the European Patent for the common market , or (Luxembourg) Community Patent Convention (CPC), was signed at Luxembourg on 15 December 1975, by
1870-461: A suspected infringer. In such a situation, a suspected infringer who has been unable to consult the text of the patent in the official language of the Member State in which he is domiciled, is presumed, until proven otherwise, not to have knowingly infringed the patent. To protect a suspected infringer who, in such a situation, has not acted in a deliberate manner, it is provided that the proprietor of
1980-542: A transitional period of minimum six years and no more than twelve years, one translation needs to be provided. Namely, a full translation of the European patent specification needs to be provided either into English if the language of the proceedings at the EPO was French or German, or into any other EU official language if the language of the proceedings at the EPO was English. Such translation will have no legal effect and will be "for information purposes only”. In addition, machine translations will be provided, which will be, in
2090-415: A unitary patent are shown below: Article 7 of Regulation 1257/2012 provides that, as an object of property, a European patent with unitary effect will be treated "in its entirety and in all participating Member States as a national patent of the participating Member State in which that patent has unitary effect and in which the applicant had her/his residence or principal place of business or, by default, had
2200-512: A vote of 471 to 160, and on 10 March 2011 the Council gave their authorisation. Two days earlier, on 8 March 2011, the Court of Justice of the European Union had issued its opinion, stating that the draft Agreement creating the European and Community Patent Court would be incompatible with EU law. The same day, the Hungarian Presidency of the Council insisted that this opinion would not affect
2310-489: Is by means of a supplementary protection certificate (SPC). A European patent application may result from the filing of an international application under the Patent Cooperation Treaty (PCT), i.e. the filing of a PCT application, and then the entry into "European regional phase", i.e. the transition from the international to the European procedural stages. The European patent application is therefore said to be
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#17328517806732420-517: Is expected to not only be valid in the mainland territory of the participating member states that are party to the UPC, but also in those of their special territories that are part of the European Union. As of April 2014, this includes the following fourteen territories: In addition to the territories above, the European Patent Convention has been extended by two member states participating in
2530-562: Is not possible to obtain a national patent through the international (PCT) phase without entering into the regional European phase and obtaining a European patent. The "national route" for Italy was closed until 30 June 2020, but Italy then reopened it for PCT applications filed on or after 1 July 2020. Court of Justice of the European Union The Court of Justice of the European Union ( CJEU ) ( French : Cour de justice de l'Union européenne or " CJUE "; Latin : Curia )
2640-634: Is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City , Luxembourg , this EU institution consists of two separate courts: the Court of Justice and the General Court . From 2005 to 2016, it also contained the Civil Service Tribunal . It has a sui generis court system, meaning 'of its own kind', and is a supranational institution. The CJEU
2750-545: Is the chief judicial authority of the EU and oversees the uniform application and interpretation of European Union law , in co-operation with the national judiciary of the member states. The CJEU also resolves legal disputes between national governments and EU institutions, and may take action against EU institutions on behalf of individuals, companies or organisations whose rights have been infringed. The CJEU consists of two major courts: Judges and advocate generals are appointed for
2860-481: Is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally enforceable, nationally revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure , which can be initiated by any person except
2970-545: The Administrative Council which held its first meeting on 19 October 1977). Subsequently, other countries have joined the EPC. The EPC is separate from the European Union (EU), and its membership is different; Switzerland , Liechtenstein , Turkey , Monaco , Iceland , Norway , North Macedonia , San Marino , Albania , Serbia , the United Kingdom , and Montenegro are party to the EPC but are not members of
3080-466: The Draft Rules Relating to Unitary Patent Protection , unitary effect would be registered only if the European patent has been granted with the same set of claims for all the 25 participating member states in the regulations, whether the unitary effect applies to them or not. European patents automatically become a bundle of "national" European patents upon grant. Upon the grant of unitary effect,
3190-525: The European Parliament on 11 December 2012, with future application set for the 25 member states then participating in the enhanced cooperation for a unitary patent (all then EU member states except Croatia, Italy and Spain). The instruments were adopted as regulations EU 1257/2012 and 1260/2012 on 17 December 2012, and entered into force in January 2013. Following a request by its government, Italy became
3300-479: The London Agreement is in force the requirement to file a translation of the European patent has been entirely or partially waived. If a translation is required, a fee covering the publication of said translation may be due as well. Almost all attributes of a European patent in a Contracting State, i.e. ownership, validity, and infringement, are determined independently under respective national law, except for
3410-652: 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 in Munich (the Convention is sometimes known as the "Munich Convention"). The signature of the Convention was the accomplishment of a decade-long discussion during which Kurt Haertel , considered by many as the father of the European Patent Organisation, and François Savignon played
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3520-526: The Unified Patent Court (UPC), which decisions have a uniform effect for the unitary patent in the participating member states as a whole rather than in each country individually. The unitary patent may be only limited, transferred or revoked, or lapse, in respect of all the participating Member States. Licensing is however possible for part of the unitary territory. The unitary patent may coexist with nationally enforceable patents ("classical" patents) in
3630-508: The draft statutory instrument aimed at implementation of the Unified Court and UPC in the UK provides for different infringement laws for: European patents (unitary or not) litigated through the Unified Court; European patents (UK) litigated before UK courts; and national patents]. The legislation for the enhanced co-operation mechanism was approved by the European Parliament on 11 December 2012 and
3740-559: The enhanced cooperation for a unitary patent to cover some of their dependent territories outside the European Union: In following of those territories, the unitary patent is de facto extended through application of national (French, or Dutch) law: However, the unitary patent does not apply in the French territories French Polynesia and New Caledonia as implementing legislation would need to be passed by those jurisdictions (rather than
3850-432: The "national" European patents will retroactively be considered to never have existed in the territories where the unitary patent has effect. The unitary effect does not affect "national" European patents in states where the unitary patent does not apply. Any "national" European patents applying outside the "unitary effect" zone will co-exist with the unitary patent. As the unitary patent is introduced by an EU regulation, it
3960-556: The 25 states where the UPC Agreement has entered into force, while patent coverage for other participating states without UPC Agreement ratification will be covered by a coexisting normal European patent in each of those states. The unitary effect of unitary patents means a single renewal fee, a single ownership, a single object of property, a single court (the Unified Patent Court ) and uniform protection, which means that revocation as well as infringement proceedings are to be decided for
4070-604: The 9 member states of the European Economic Community at that time. However, the CPC never entered into force. It was not ratified by enough countries. Fourteen years later, the Agreement relating to Community patents was made at Luxembourg on 15 December 1989. It attempted to revive the CPC project, but also failed. This Agreement consisted of an amended version of the original Community Patent Convention. Twelve states signed
4180-470: The Agreement: Belgium , Denmark , France, Germany, Greece , Ireland , Italy, Luxembourg , the Netherlands , Portugal , Spain, and United Kingdom. All of those states would need to have ratified the Agreement to cause it to enter into force, but only seven did so: Denmark , France, Germany, Greece , Luxembourg , the Netherlands , and United Kingdom. Nevertheless, a majority of member states of
4290-529: 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
4400-402: The Convention, Article 52(1) EPC, entitled " Patentable inventions ", states: European patents shall be granted for any inventions, in all fields of technology, providing that they are new , involve an inventive step , and are susceptible of industrial application . This article constitutes the "fundamental provision of the EPC which governs the patentability of inventions". However,
4510-534: The Council's Committee of Experts in patent matters. The meetings of the Committee nevertheless led to two Conventions, one on the formalities required for patent applications (1953) and one on the international classification of patent (1954). The Council's Committee then carried on its work on substantive patent law, resulting in the signature of the Strasbourg Patent Convention in 1963. In 1973,
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4620-546: The EEC at that time introduced some harmonisation into their national patent laws in anticipation of the entry in force of the CPC. A more substantive harmonisation took place at around the same time to take account of the European Patent Convention and the Strasbourg Convention . In 2000, renewed efforts from the European Union resulted in a Community Patent Regulation proposal, sometimes abbreviated as CPR . It provides that
4730-414: The EPC already provided the possibility for a group of member states to allow European patents to have a unitary character also after grant, until now, only Liechtenstein and Switzerland have opted to create a unified protection area (see Unitary patent (Switzerland and Liechtenstein) ). By requesting unitary effect within one month of grant, the patent proprietor is now able to obtain uniform protection in
4840-497: The EPC provides further indications on what is and is not patentable. Specifically, the EPC sets forth exclusions under Article 52(2) and (3) EPC and exclusions under Article 53 EPC. First, 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 are not regarded as inventions and are excluded from patentability only to
4950-443: The EPC requires that national courts must consider the "direct product of a patented process" to be an infringement. 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
5060-414: The EPC. 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." All Contracting States are considered designated upon filing of a European patent application. and the designations need to be "confirmed" later during the procedure through the payment of designation fees. Once granted by
5170-465: The EPO may be extended to those countries through the payment of additional fees and completion of certain formalities. Such cooperation agreements are concluded by the President of the European Patent Office on behalf of the European Patent Organisation pursuant to Article 33(4) EPC, are not based on a "direct application of the EPC but solely on national law modelled on the EPC", and exist to assist with
5280-402: The EPO so that, in effect, this state can be designated in a European patent application. Several other "extension states" have since become states parties to the EPC. Furthermore, so-called "validation agreements" with Morocco, Moldova, Tunisia, and Cambodia are also in effect since 1 March 2015, 1 November 2015, 1 December 2017, and 1 March 2018, respectively. A further validation agreement
5390-418: The EPO, a European patent comes into existence effectively as a group of national patents in each of the designated Contracting States. There are only two types of centrally executed procedures after grant, the opposition procedure and the limitation and revocation procedures . The opposition procedure, governed by the EPC, allows third parties to file an opposition against a European patent within 9 months of
5500-646: The EU treaties. In January 2013, Advocate General Yves Bot delivered his recommendation that the court reject the complaint. Suggestions by the Advocate General are advisory only, but are generally followed by the court. The case was dismissed by the court in April 2013, however Spain launched two new challenges with the EUCJ in March 2013 against the regulations implementing the unitary patent package. The court hearing for both cases
5610-473: The EU. Further, the EU is not a party to the EPC, although all members of the EU are party to the EPC. The Convention is, as of October 2022, in force in 39 countries. Montenegro became the 39th Contracting State on 1 October 2022. A diplomatic conference was held in November 2000 in Munich to revise the Convention, amongst other things to integrate in the EPC new developments in international law and to add
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#17328517806735720-760: The European Coal and Steel Communities. With the Euratom and the European Economic Community in 1957 its name changed to the Court of Justice of the European Communities ( CJEC ). In 1988 the Court requested the Commission to create a Court of First Instance and in 2004 it added the Civil Service Tribunal. The Civil Service Tribunal are for issues of public employment. The Treaty of Lisbon in 2009 renamed
5830-556: The European Court of Justice could therefore invalidate the legislation. By the end of 2012 a new compromise was reached between the European Parliament and the European Council, including a limited role for the European Court of Justice. The Unified Court will apply the Unified Patent Court Agreement, which is considered national patent law from an EU law point of view, but still is equal for each participant. [However
5940-466: The European Patent Office regarding the unitary patent are open to appeal to the Unified Patent Court, rather than to the EPO Boards of Appeal . For a unitary patent, ultimately no translation will be required (except under certain circumstances in the event of a dispute), which is expected to significantly reduce the cost for protection in the whole area. However, Regulation 1260/2012 provides that, during
6050-429: The European Union provides that a group of member states of the European Union can choose to co-operate on a specific topic, was proposed by twelve Member States to set up a unitary patent applicable in all participating European Union Member States. The use of this procedure had only been used once in the past, for harmonising rules regarding the applicable law in divorce across several EU Member States. In early 2011,
6160-457: The European Union. In an impact assessment from 2011, the European Commission estimated that the costs of obtaining a patent in all 27 EU countries would drop from over 32 000 euro (mainly due to translation costs) to 6 500 euro (for the combination of an EU, Spanish and Italian patent) due to introduction of the Unitary patent. Per capita costs of an EU patent were estimated at just 6 euro/million in
6270-497: 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
6380-505: The French national legislation required in the other territories) and this has not been done. The renewal fees are planned to be based on the cumulative renewal fees due in the four countries where European patents were most often validated in 2015 (Germany, France, the UK and the Netherlands). This is despite the UK leaving the unitary patent system following Brexit. The renewal fees of the unitary patent would thus be ranging from 35 Euro in
6490-519: The UK House of Commons European Scrutiny Committee in February suggested that the position was more complicated. At an EU summit at the end of January 2012, participants agreed to press on and finalise the system by June. On 26 April, Herman Van Rompuy , President of the European Council, wrote to members of the council, saying "This important file has been discussed for many years and we are now very close to
6600-404: The UPC Agreement later enters into force, this will be reflected for all subsequently registered unitary patents, but the territorial scope of the unitary effect of existing unitary patents will not be extended to these states. Unitary effect can be requested up to one month after grant of the European patent directly at the EPO, with retroactive effect from the date of grant. However, according to
6710-843: The UPC Agreement) is not obvious. The court has two instances: a court of first instance and a court of appeal. The court of appeal and the registry have their seats in Luxembourg, while the central division of the court of first instance would have its seat in Paris . The central division has a thematic branch in Munich (the London location has yet to be replaced by a new location within the EU). The court of first instance may further have local and regional divisions in all member states that wish to set up such divisions. While
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#17328517806736820-489: The UPC agreement at a later date. The unitary patent system applies since 1 June 2023, the date of entry into force of the UPC Agreement. In 2009, three draft documents were published regarding a community patent: a European patent in which the European Community was designated: Based on those documents, the European Council requested on 6 July 2009 an opinion from the Court of Justice of the European Union, regarding
6930-495: The UPC took place after Germany deposited its instrument of ratification of the UPC Agreement, which triggered the countdown until the Agreement's entry into force on June 1, 2023. The UPC Agreement was signed on 19 February 2013 by 24 EU member states, including all states then participating in the enhanced co-operation measures except Bulgaria and Poland . Bulgaria signed the agreement on 5 March 2013 following internal administrative procedures. Italy, which did not originally join
7040-399: The agreement in May 2024, and will join as the 18th participating member on 1 September 2024. The Unified Patent Court has exclusive jurisdiction in infringement and revocation proceedings involving European patents with unitary effect, and during a transition period non-exclusive jurisdiction regarding European patents without unitary effect in the states where the Agreement applies, unless
7150-459: The agreement was issued on 11 November 2011 and was open to all member states of the European Union, but not to other European Patent Convention states. However, serious criticisms of the proposal remained mostly unresolved. A meeting of the Competitiveness Council on 5 December failed to agree on the final text. In particular, there was no agreement on where the Central Division of a Unified Patent Court should be located, "with London, Munich and Paris
7260-438: The candidate cities." The Polish Presidency acknowledged on 16 December 2011 the failure to reach an agreement "on the question of the location of the seat of the central division." The Danish Presidency therefore inherited the issue. According to the President of the European Commission in January 2012, the only question remaining to be settled was the location of the Central Division of the Court. However, evidence presented to
7370-408: The compatibility of the envisioned Agreement with EU law: "'Is the envisaged agreement creating a Unified Patent Litigation System (currently named European and Community Patents Court) compatible with the provisions of the Treaty establishing the European Community?’" In December 2010, the use of the enhanced co-operation procedure, under which Articles 326–334 of the Treaty on the Functioning of
7480-429: The cost savings are expected to be much lower than actually claimed by the commission. For example, the EPO calculated that for an average EP patent validated and maintained in 4 countries, the overall savings to be between 3% and 8%. During the first year of the unitary patent, that is, from 1 June 2023, to 31 May 2024, more than 27500 European patents with unitary effect have been registered. This corresponds to almost
7590-423: The country. On 18 January 2019, Kluwer Patent Blog wrote, "a recurring theme for some years has been that 'the UPC will start next year'". Then, Brexit and German constitutional court complaint were considered as the main obstacles. The German constitutional court first decided in a decision of 13 February 2020 against the German ratification of the Agreement on the ground that the German Parliament did not vote with
7700-404: The date of grant of that patent. It is a quasi-judicial process, subject to appeal, which can lead to maintenance, maintenance in amended form or revocation of a European patent. Simultaneously to the opposition, a European patent may be the subject of litigation at a national level (for example an infringement dispute). National courts may suspend such infringement proceedings pending outcome of
7810-428: The date when the related Unified Patent Court Agreement enters into force for those EU countries that have also ratified the UPC, and will extend to those participating member states for which the UPC Agreement enters into force at the time of registration of the unitary patent. Previously granted unitary patents will not automatically get their unitary effect extended to the territory of participating states which ratify
7920-449: 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 wilful infringement, etc.), equitable defences, coexistence of an EP national daughter 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. For
8030-442: The enhanced co-operation measures but subsequently signed up, did sign the UPC agreement. The agreement remains open to accession for all remaining EU member states, with all European Union Member States except Spain and Poland having signed the Agreement. States which do not participate in the unitary patent regulations can still become parties to the UPC agreement, which would allow the new court to handle European patents validated in
8140-400: The enhanced co-operation procedure. In November 2011, negotiations on the enhanced co-operation system were reportedly advancing rapidly—too fast, in some views. It was announced that implementation required an enabling European Regulation, and a Court agreement between the states that elect to take part. The European Parliament approved the continuation of negotiations in September. A draft of
8250-461: The establishment of national property rights in these states. As is the case in EPO contracting states, the rights conferred to European patents validated/extended to these states are the same as national patents in those states. However, the extension of a European patent or patent application to these states is "not subject to the jurisdiction of the [EPO] boards of appeal." As of October 2022, Bosnia and Herzegovina has an extension agreement with
8360-424: The extent that the invention relates to those areas as such . This is "a negative, non-exhaustive list of what should not be regarded as an invention within the meaning of Article 52(1) EPC." (For further information, see also: Software patents under the EPC ). The second set of exclusions, or exceptions, include: The Convention also includes provisions setting out filing requirements of European applications,
8470-422: The grant of centrally enforceable patents in all 39 countries, although the European Union patent would allow for unitary effect: centrally enforceability throughout 24 of the 27 countries of the European Union. The content of the Convention includes several texts in addition to the main 178 articles. These additional texts, which are integral parts of the Convention, are: One of the most important articles of
8580-456: The meaning of the claims. A "Protocol on the Interpretation of Article 69 EPC" 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. The authentic text of a European patent application and of
8690-510: The non-participating states. The unitary patent's stated aims are to make access to the patent system "easier, less costly and legally secure within the European Union" and "the creation of uniform patent protection throughout the Union". European patents are granted in English, French, or German and the unitary effect will not require further translations after a transition period. The maintenance fees of
8800-438: The opposition procedure, limitation procedure, and revocation procedure as discussed above. Though the EPC imposes some common limits, the EPC expressly adopts national law for interpretation of all substantive attributes of a European patent in a Contracting State, with a few exceptions. Infringement is remitted entirely to national law and to national courts. In one of its very few substantive interventions into national law,
8910-414: The opposition proceedings to avoid proceedings running in parallel and the uncertainties that may arise from that. In contrast to the unified, regional character of a European patent application, the granted European patent does not comprise, in effect, any such unitary character, except for the opposition procedure. In other words, one European patent in one Contracting State is effectively independent of
9020-597: The original 25 participating countries (and 12 euro/million in the 27 EU countries for protection with a Unitary, Italian and Spanish patent). How the EU Commission has presented the expected cost savings has however been sharply criticized as exaggerated and based on unrealistic assumptions. The EU Commission has notably considered the costs for validating a European patent in 27 countries while in reality only about 1% of all granted European patents are currently validated in all 27 EU states. Based on more realistic assumptions,
9130-399: The participating members states of the European Union in a single step, considerably simplifying obtaining patent protection in a large part of the EU. The unitary patent system co-exists with national patent systems and European patent without unitary effects. The unitary patent does not cover EPC countries that are not member of the European Union, such as UK or Turkey. The implementation of
9240-399: The patent is considered never to have existed (void ab initio) in that state. For the 22 parties to the London Agreement , this requirement has already been abolished or reduced (e.g. by dispensing with the requirement if the patent is available in English, and/or only requiring translation of the claims ). Translation requirements for the participating states in the enhanced cooperation for
9350-435: The patent proprietor decides to opt out. It furthermore has jurisdiction to hear cases against decisions of the European Patent Office regarding unitary patents. As a court of several member states of the European Union it may (Court of First Instance) or must (Court of Appeal) ask prejudicial questions to the European Court of Justice when the interpretation of EU law (including the two unitary patent regulations, but excluding
9460-594: The patent proprietor, and limitation and revocation procedures , which can be initiated by the patent proprietor only. The EPC provides a legal framework for the granting of European patents, via a single, harmonised procedure before the European Patent Office (EPO). A single patent application , in one language, may be filed at the EPO in Munich , at its branch in The Hague , at its sub-office in Berlin , or at
9570-558: The patent will not be able to obtain damages in respect of the period prior to the translation of the patent being notified to the infringer. European patent The European Patent Convention ( EPC ), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. The term European patent
9680-461: The patent, once it has been granted by the European Patent Office (EPO) in one of its procedural languages (English, German or French) and published in that language, with a translation of the claims into the two other procedural languages, will be valid without any further translation. This proposal is aimed to achieve a considerable reduction in translation costs. Nevertheless, additional translations could become necessary in legal proceedings against
9790-411: The procedure leading to the enhanced co-operation was reported to be progressing. Twenty-five Member States had written to the European Commission requesting to participate, with Spain and Italy remaining outside, primarily on the basis of ongoing concerns over translation issues. On 15 February, the European Parliament approved the use of the enhanced co-operation procedure for unitary patent protection by
9900-426: The procedure up to grant, the opposition procedure and other aspects relating to the prosecution of patent applications under the Convention. European patent applications may be filed in any language, but they are prosecuted only in one of the three official languages of the EPO – English, French and German. If an application is filed in another language than an official language, a translation must be filed into one of
10010-461: The project, or very similar projects, have been referred to as the "European Union patent" (the name used in the EU treaties, which serve as the legal basis for EU competency), "EU patent", "Community patent", "European Community Patent", "EC patent" and "COMPAT". On 17 December 2012, agreement was reached between the European Council and European Parliament on the two EU regulations that made
10120-535: The regulations formally apply to all 25 member states participating in the enhanced cooperation for a unitary patent , from the date the UPC agreement has entered into force for the first group of ratifiers, unitary patents will only extend to the territory of those participating member states where the UPC Agreement had entered into force when the unitary effect was registered. If the unitary effect territory subsequently expands to additional participating member states for which
10230-460: The regulations were signed by the European Council and European Parliament officials on 17 December 2012. On 30 May 2011, Italy and Spain challenged the council's authorisation of the use of enhanced co-operation to introduce the trilingual (English, French, German) system for the unitary patent, which they viewed as discriminatory to their languages, with the CJEU on the grounds that it did not comply with
10340-426: The required majority (2/3 according to the judgement). After a second vote and further, this time unsuccessful, constitutional complaints, Germany formally ratified the UPC Agreement on 7 August 2021. While the UK ratified the agreement in April 2018, the UK later withdrew from the Agreement following Brexit. As of the entry into force of the UPC on 1 June 2023, 17 countries had ratified the Agreement. Romania ratified
10450-491: 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. Validity is also remitted largely to national law and national courts. Article 138(1) EPC 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: The EPC requires all jurisdictions to give
10560-527: The same European patent in each other Contracting State, except for the opposition procedure. 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 . That is also the date of publication of the B1 document, i.e. the European patent specification. This means that
10670-404: The second year to 4855 in the 20th year. The renewal fees will be collected by the EPO, with the EPO keeping 50% of the fees and the other 50% being redistributed to the participating member states. Translation requirements as well as the requirement to pay yearly patent maintenance fees in individual countries presently renders the European patent system costly to obtain protection in the whole of
10780-418: The three official languages, within two months from the date of filing. The official language of filing (or of the translation) is adopted as the "language of proceedings" and is used by the EPO for communications. European patent applications are prosecuted in a similar fashion to most patent systems – the invention is searched and published, and subsequently examined for compliance with the requirements of
10890-399: The unified character of a European patent application, a granted European patent has, in effect, no unitary character, except for the centralized opposition procedure (which can be initiated within 9 months from grant, by somebody else than the patent proprietor), and the centralized limitation and revocation procedures (which can only be instituted by the patent proprietor). In other words,
11000-504: The unitary patent as a whole rather than for each country individually. Licensing is however to remain possible for part of the unitary territory. Some administrative tasks relating to the European patents with unitary effect are performed by the European Patent Office, as authorized by Article 143(1) EPC . These tasks include the collection of renewal fees and registration of unitary effect upon grant, recording licenses and statements that licenses are available to any person. Decisions of
11110-472: The unitary patent is based on three legal instruments: Thus the unitary patent is based on EU law as well as the European Patent Convention (EPC). Article 142 EPC provides the legal basis for establishing a common system of patents for Parties to the EPC. Previously, only Liechtenstein and Switzerland had used this possibility to create a unified protection area (see Unitary patent (Switzerland and Liechtenstein) ). The first two regulations were approved by
11220-484: The unitary patent possible through enhanced cooperation at EU level. The legality of the two regulations was challenged by Spain and Italy, but all their claims were rejected by the European Court of Justice . Italy subsequently joined the unitary patent regulation in September 2015, so that all EU member states except Spain and Croatia now participate in the enhanced cooperation for a unitary patent. Unitary effect of newly granted European patents will be available from
11330-425: The unitary patent regulations in September 2015. European patents are granted in accordance with the provisions of the European Patent Convention (EPC), via a unified procedure before the European Patent Office (EPO). While upon filing of a European patent application, all 39 Contracting States are automatically designated, a European patent becomes a bundle of "national" European patents upon grant. In contrast to
11440-463: The unitary patents are lower than the sum of the renewal fees for national patents of the corresponding area, being equivalent to the combined maintenance fees of Germany, France, the UK and the Netherlands (although the UK is no longer participating following Brexit). The negotiations which resulted in the unitary patent can be traced back to various initiatives dating to the 1970s. At different times,
11550-451: 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 Ireland if the European patent is in English. In those Contracting States where
11660-414: The words of the regulation, "for information purposes only and should not have any legal effect". In several EPC contracting states, for the national part of a traditional bundle European patent (i.e., for a European patent without unitary effect), a translation has to be filed within a three-month time limit after the publication of grant in the European Patent Bulletin under Article 65 EPC , otherwise
11770-596: Was considered controversial and included the deletion of three key articles (6–8) of the legislation, seeking to reduce the competence of the European Union Court of Justice in unitary patent litigation. On 9 July 2012, the Committee on Legal Affairs of the European Parliament debated the patent package following the decisions adopted by the General Council on 28–29 June 2012 in camera in the presence of MEP Bernhard Rapkay . A later press release by Rapkay quoted from
11880-409: Was eventually reached at the June European Council (28–29 June 2012), splitting the central division according to technology between Paris (the main seat), London and Munich. However, on 2 July 2012, the European Parliament decided to postpone the vote following a move by the European Council to modify the arrangements previously approved by MEPs in negotiations with the European Council. The modification
11990-452: Was scheduled for 1 July 2014. Advocate-General Yves Bot published his opinion on 18 November 2014, suggesting that both actions be dismissed ( ECLI:EU:C:2014:2380 and ECLI:EU:C:2014:2381 ). The court handed down its decisions on 5 May 2015 as ECLI:EU:C:2015:298 and ECLI:EU:C:2015:299 fully dismissing the Spanish claims. Following a request by its government, Italy became a participant of
12100-598: Was signed with Georgia on 31 October 2019 and entered into force on 15 January 2024. The European Patent Convention is "a special agreement within the meaning of Article 19 of the Convention for the Protection of Industrial Property , signed in Paris on 20 March 1883 and last revised on 14 July 1967, and a regional patent treaty within the meaning of Article 45, paragraph 1, of the Patent Cooperation Treaty of 19 June 1970." The European Patent Convention currently does not lead to
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