Author: Author

Posted on

Protection of Biotechnological Inventions

Definitions:


Biological material means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system.

Microbiological process means any process involving or performed upon or resulting in microbiological material,

Essentially biological process for the production of plants or animals means such a process, which consists entirely of natural phenomena such as crossing or selection.


Patentable biotechnological inventions

Biotechnological inventions are patentable, if they concern

a) biological material, which is isolated from its natural environment or produced by means of a technical process, even if it previously occurred in nature,

b) plants or animals, if the technical feasibility of the invention is not confined to a particular plant or animal variety, or

c) microbiological or other technical process and a product, other than a plant or animal variety, obtained by this way.


Exclusions of patentability

Patents shall be not granted to

a) inventions, whose commercial exploitation would be contrary to public policy or to principles of morality, namely to processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, processes of using human embryos for industrial or commercial purposes or processes for modifying the genetic identity of animals, which are likely to cause them suffering without any substantial medical benefit to man or animal, and also to animals resulting from such processes; however, the contradiction to public policy or to principles of morality shall not be deduced merely from the fact that the exploitation of the invention is prohibited by legal regulation,

b) human body at various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene; it does not apply to an element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, even if the structure of that element is identical to that of a natural element, and

c) plant and animal varieties or essential biological processes for the production of plants or animals.

 

Special provisions on the application of biotechnological invention

Where an invention involves the use of or concerns biological material which is not available to the public and which cannot be described in a patent application in such a manner as to enable the invention to be reproduced by a person skilled in the art, the description shall be considered inadequate unless:

a) the biological material has been deposited no later than the date, from which the right of priority belongs to the applicant, with the recognised depositary institution, which has acquired this status by virtue of Article 7 of the Budapest Treaty of 28 April 1977 on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure,

b) the application of invention as filed contains such relevant information as is available to the applicant on the characteristics of the biological material deposited, and

c) the patent application states the name of the depository institution and the accession number of the sample.

Access to the deposited biological material shall be provided through the supply of a sample:

a) between the first publication of the application and the granting of the patent, to anyone requesting it (hereinafter referred to as the “petitioner”) or, if the applicant so request, only to an independent expert, or
b) after the patent has been granted, and notwithstanding cancellation of the patent, to anyone requesting it.
The sample shall be supplied only if the petitioner or an independent expert in terms of paragraph 2 undertakes, for the term during which the patent is in force:

a) not to make the sample or any material derived from it available to third parties, and

b) not to use the sample or any material derived from it except for experimental purposes, unless the applicant for or proprietor of the patent, as applicable, expressly waives such an undertaking.
The applicant is entitled to limit access to the deposit material for 20 years from the date on which the patent application was filed to anybody, except an independent expert, even in case, where the application is refused or withdrawn.

The applicant shall notify the limitation of access to the deposit biological material to the Office of the Contracting State at the latest on the date, on which the preparations for publishing the patent application have been completed. The Office will publish such a limitation of access to the deposit biological material together with the invention application in the National Bulletin of the Office.

If the biological material deposited ceases to be available from the recognised depository institution, a new deposit of the material shall be permitted on the same terms as those laid down in the Budapest Treaty.

Any new deposit shall be accompanied by a statement signed by the depositor and certifying that the newly deposit biological material is the same as that originally deposited.

If the application concerns an invention of the sequence or partial sequence of a gene, their industrial applicability must be made obvious in the patent application.

Pages: 1 2
Posted on

Grant of Supplementary Protection Certificates (SPC) for Medicaments and Plant Protection Products

Where applicable, the National Office shall grant supplementary protection certificates for substances protected on the territory of the Contracting State by the valid patent, if they are the active substances of the products which prior being placed on the market, are subject to the registration according to the special regulations.

The active substance shall mean:

  • a chemically manufactured substance or
  • a combination of substances,
  • a micro-organism or
  • a combination of micro-organisms,

which have general or specific therapeutic or preventive effects with regard to human or animal diseases

or

which may be administered to the human beings or animals in order to disease diagnosis, improvement or arrangement of their health condition

or

which are destined to the protection of plants or plant products.

The product referred to in first paragraph shall mean any active substance or a combination containing one or more active substances put up in the form for being placed on the market as a medicament or a plant protection product.


Application for a certificate

The application for a certificate shall be filed by the proprietor of the patent, whose subject-matter is a substance, except for the patent granted under special provisions, or a method for obtaining a substance or a use of a substance as a medicament or as a plant protection product, or his successor in title.

The application for a certificate shall be filed within 6 months from the date on which the decision on the registration of the product is issued according to special regulations. If the registration is made prior to the grant of the basic patent, the application for a certificate shall be filed within the period of 6 months from the date on which the patent is granted.

The application for a certificate shall contain:

a) a request for the grant of the certificate stating in particular:

1. the name and address of the applicant;

2. the name and address of the representative, if any;

3. the number of the basic patent and the title of the invention;

4. the number and date of the first registration of the product according to special regulations; 4d

b) a copy of the decision on the registration of the product issued according to special regulations, where the product is identified, including the product data summary, if it is a medicament;

c) chemical, generic or other terminology enabling to identify the substance protected by the basic patent with the registered product.

When filing the application for a certificate, the applicant shall pay the administrative fee according to the special regulations.

The National Office shall record the filing of the application for a certificate to the Patent Register and publish it in the Bulletin. The publication shall contain the name and address of the applicant, the number of the basic patent and the title of the invention protected by the patent, the number and the date of the registration, including of the mention of the product, putting on the market of which is authorised by means of this registration.


Conditions for obtaining a certificate

The National Office shall grant a certificate, if the following conditions are met on the date of filing the application:

a) the basic patent is valid on the territory of the Contracting State;

b) the product contains the active substance protected by the basic patent and is validly registered as a medicament or a plant protection product according to special regulations;

c) the certificate has not yet been granted to the substance;

d) the registration referred to in the letter b) is the first authorisation to place a medicament manufactured en masse in the Conrtacting State or the first authorisation to place a plant protection product on the market in the Contracting State.


Grant of the certificate

If the application for a certificate meets said conditions and the substance, for which the certificate is applied for, meets the conditions as well, the National Office shall grant the certificate and record it in the National Patent Register. The certificate shall contain:

a) the name and address of the proprietor of the certificate;

b) the number of the basic patent and the title of the invention;

c) the number and date of the first registration, the authority having issued the decision on the registration, and the mention of the product, placing on the market of which is authorised by means of this registration;

d) the duration of the certificate.

The Office shall publish the grant of the certificate in the National Bulletin.

If the application for a certificate does not meet conditions, the National Office shall invite the applicant to remedy the deficiencies within a set time limit. If the applicant fails to complete the application within the set time limit, the National Office shall terminate the procedure; the applicant shall be notified about this consequence.

If conditions for the grant of the certificate are not met the application a certificate shall be rejected.


Subject-matter and effects of the certificate

Within the limits of the protection conferred by the basic patent, the protection by the certificate shall extend to the chemical substance or a combination of substances, micro-organism or a combination of micro-organisms, which represent the active substance of the registered product, as well as to every use of the subject-matter of the patent as a medicament or plant protection product, which was authorised before the expiry of the certificate.

The certificate shall confer the same rights as conferred by the basic patent; the certificate shall be subject to the same limitations and the same obligations.


Duration of the certificate

The certificate shall take effect for a period equal to the period, which elapsed between the filing date of the basic patent application and the date of the first registration enabling to place the product on the market in the Contracting State as a medicament or plant protection product, reduced by 5 years, but at most 5 years from the date, on which the certificate takes effect.

The certificate shall take effect after the expiry of the lawful term of the basic patent.

For maintaining the certificate, the proprietor shall pay yearly administrative fees according to the special regulations.

Rights of third persons who started, after the lapse of time for payment of the fee for maintenance of a certificate in force, to use the invention in good faith or performed serious and effective preparations for such use, shall not be affected by payment of this fee within additional period of time.


Lapse of the certificate

The certificate shall lapse

a) by expiry of its duration period;

b) if its proprietor surrenders it;

c) if its proprietor does not pay administrative fees for maintaining the certificate in force;

d) if the product may no longer be placed on the market following the revocation or expiry of the registration;

e) by revocation of the certificate.

The Office shall record the lapse of the certificate to the National Patent Register and announce it in the National Bulletin.


Revocation of the certificate

The National Office shall revoke the certificate, if

a) the conditions for its grant have not been met;

b) the basic patent has lapsed before its duration term;

c) the basic patent has been revoked or limited to the extent that the substance, for which the certificate was granted, is no longer protected by the basic patent; it shall apply also in case of the basic patent revocation, which occurred after its lapse.

The request for revocation of the certificate may also be submitted after the lapse of the basic patent under, if the applicant proves his legal interest.

Posted on

Adversarial and non-adversarial proceedings

Opposition, limitation or revocation procedure

At the request of the proprietor, the European patent may be revoked or be limited by an amendment of the claims. The request shall be filed with the European Patent Office in accordance with the Implementing Regulations. It shall not be deemed to have been filed until the limitation or revocation fee has been paid.

The request may not be filed while opposition proceedings in respect of the European patent are pending.

The European Patent Office shall examine whether the requirements laid down in the Implementing Regulations for limiting or revoking the European patent have been met. If the European Patent Office considers that the request for limitation or revocation of the European patent meets these requirements, it shall decide to limit or revoke the European patent in accordance with the Implementing Regulations. Otherwise, it shall reject the request. The decision to limit or revoke the European patent shall apply to the European patent in all the Contracting States in respect of which it has been granted. It shall take effect on the date on which the mention of the decision is published in the European Patent Bulletin. 

If the European patent is limited, the European Patent Office shall publish the amended specification of the European patent as soon as possible after the mention of the limitation has been published in the European Patent Bulletin.

Within nine months of the publication of the mention of the grant of the European patent in the European Patent Bulletin, any person may give notice to the European Patent Office of opposition to that patent, in accordance with the Implementing Regulations. Notice of opposition shall not be deemed to have been filed until the opposition fee has been paid. The opposition shall apply to the European patent in all the Contracting States in which that patent has effect. Opponents shall be parties to the opposition proceedings as well as the proprietor of the patent. Where a person provides evidence that in a Contracting State, following a final decision, he has been entered in the patent register of such State instead of the previous proprietor, such person shall, at his request, replace the previous proprietor in respect of such State.

Opposition may only be filed on the grounds that: 

(a) the subject-matter of the European patent is not patentable;

(b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.

If the opposition is admissible, the Opposition Division shall examine, in accordance with the Implementing Regulations, whether at least one ground for opposition prejudices the maintenance of the European patent. During this examination, the Opposition Division shall invite the parties, as often as necessary, to file observations on communications from another party or issued by itself.

If the Opposition Division is of the opinion that at least one ground for opposition prejudices the maintenance of the European patent, it shall revoke the patent. Otherwise, it shall reject the opposition. 

If the Opposition Division is of the opinion that, taking into consideration the amendments made by the proprietor of the European patent during the opposition proceedings, the patent and the invention to which it relates 

(a) meet the requirements of this Convention, it shall decide to maintain the patent as amended, provided that the conditions laid down in the Implementing Regulations are fulfilled; 

(b) do not meet the requirements of this Convention, it shall revoke the patent. 

If the European patent is maintained as amended, the European Patent Office shall publish a new specification of the European patent as soon as possible after the mention of the opposition decision has been published in the European Patent Bulletin.

Each party to the opposition proceedings shall bear the costs it has incurred, unless the Opposition Division, for reasons of equity, orders, in accordance with the Implementing Regulations, a different apportionment of costs. 

The procedure for fixing costs shall be laid down in the Implementing Regulations. Any final decision of the European Patent Office fixing the amount of costs shall be dealt with, for the purpose of enforcement in the Contracting States, in the same way as a final decision given by a civil court of the State in which enforcement is to take place. Verification of such decision shall be limited to its authenticity. 

Any third party may, in accordance with the Implementing Regulations, intervene in opposition proceedings after the opposition period has expired, if the third party proves that  

(a) proceedings for infringement of the same patent have been instituted against him, or 

(b) following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent. 

An admissible intervention shall be treated as an opposition. 

Pages: 1 2
Posted on

European Patent Validation

Effects of the European patent in Contracting State

The patent granted by the European Patent Office shall have the same effects, as the national patents granted in Contracting states.

The European patent shall have the effects in the Contracting State as from the date, when the grant of the European patent was announced in the European Patent Bulletin.

The proprietor of the patent shall be obliged to

  • submit to the Office the translation of the patent specification to the national language within 3 months since this date, and

  • to pay the administrative fee for the publication

In the same time, the proprietor of the patent shall be obliged to

  • submit to the Office the address in the Contracting State, where the official notifications concerning his patent are to be sent.


The Office shall announce the grant of the European patent in the Bulletin and publish the translation of the European patent specification.

If the translation of the European patent specification to the national language is not submitted within the period specified above, the proprietor of the European patent may submit it in the additional time limit of 3 months, provided that he will pay the administrative fee according to the special regulation.

If the translation of the European patent specification to the national language is not submitted even within the additional time limit according to the above paragraph, the European patent shall be considered in the Contracting State as null and void from the outset.

After the announcement of the grant of the European patent in the European Patent Bulletin, the Office shall enter the European patent to the National Register of European patents with the data.


Extent of protection from the European patent

The text of the European patent in the language of the proceedings before the European Patent Office shall be decisive for the determination of the extent of protection conferred by the European patent; nevertheless, if the extent of protection conferred by the translation of the patent specification, submitted to the National Office of the Contracting State is narrower than in the language of proceedings, third parties can refer to this translation.

The proprietor of a European patent is entitled to submit to the Office the corrected translation of the European patent specification to the national language. The corrected translation shall have effects instead of the original translation as from the publication of the corrected translation by the National Office; the proprietor of the European patent shall pay the fee for the publication according to special regulations.

The rights of third persons, which on the territory of the Contracting State in good faith have used or have realised serious and effective preparations to use the subject-matter, which pursuant to the translation valid in the period before the publication of the corrected translation by the National Office was not covered by the extent of this European patent, are not affected by the delivery of the new translation.


Prohibition of the simultaneous protection

If the national patent is granted to the invention, to which the European patent has been granted with the same right of priority to the same proprietor of the patent or his successor in title, the national patent shall cease to have effect to the extent that it is identical with the European patent, from the date, on which the period for filing the notice of opposition to the European patent expires without such notice being filed, or the date of entry into force of the decision, by which the European patent has been maintained in the opposition proceedings.

The national patent shall not have effects to the extent that it is identical with the European patent, if it was granted after the expiry of the period for filing the notice of opposition to the European patent without such notice being filed, or after the date of entry into force of the decision, by which the European patent has been maintained in the opposition proceedings.

The provisions mentioned in the above two paragraphs shall not be affected by the revocation of the European patent.

Pages: 1 2 3
Posted on

European Patent

Term of the European patent

The term of the European patent shall be 20 years from the date of filing of the application.

Nothing in the preceding paragraph shall limit the right of a Contracting State to extend the term of a European patent, or to grant corresponding protection which follows immediately on expiry of the term of the patent, under the same conditions as those applying to national patents: 

(a) in order to take account of a state of war or similar emergency conditions affecting that State; 

(b) if the subject-matter of the European patent is a product or a process for manufacturing a product or a use of a product which has to undergo an administrative authorisation procedure required by law before it can be put on the market in that State. 

It shall apply mutatis mutandis to European patents granted jointly for a group of Contracting States.


Rights conferred by a European patent

A European patent shall confer on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.

If the subject-matter of the European patent is a process, the protection conferred by the patent shall extend to the products directly obtained by such process.

Any infringement of a European patent shall be dealt with by national law. 

The European patent application and the resulting European patent shall be deemed not to have had, from the outset to the extent that the patent has been revoked or limited in opposition, limitation or revocation proceedings.


Extent of protection

The extent of the protection conferred by a European patent or a European patent application shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims.

For the period up to grant of the European patent, the extent of the protection conferred by the European patent application shall be determined by the claims contained in the application as published. However, the European patent as granted or as amended in opposition, limitation or revocation proceedings shall determine retroactively the protection conferred by the application, in so far as such protection is not thereby extended.

In any designated Contracting State a European patent application and a European patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent. A national patent application and a national patent in a Contracting State shall have with regard to a European patent designating that Contracting State the same prior right effect as if the European patent were a national patent. Any Contracting State may prescribe whether and on what terms an invention disclosed in both a European patent application or patent and a national application or patent having the same date of filing or, where priority is claimed, the same date of priority, may be protected simultaneously by both applications or patents. 

Pages: 1 2
Posted on

The European Patent Application as an Object of Property

A European patent application may be transferred or give rise to rights for one or more of the designated Contracting States.

An assignment of a European patent application shall be made in writing and shall require the signature of the parties to the contract. 

A European patent application may be licensed in whole or in part for the whole or part of the territories of the designated Contracting States.

Unless Convention provides otherwise, the European patent application as an object of property shall, in each designated Contracting State and with effect for such State, be subject to the law applicable in that State to national patent applications.

Where the applicants for or proprietors of a European patent are not the same in respect of different designated Contracting States, they shall be regarded as joint applicants or proprietors for the purposes of proceedings before the European Patent Office. The unity of the application or patent in these proceedings shall not be affected; in particular the text of the application or patent shall be uniform for all designated Contracting States, unless Convention provides otherwise. 


Revocation of European patents

A European patent may be revoked with effect for a Contracting State only on the grounds that:

(a) the subject-matter of the European patent is not patentable under Convention;

(b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art; 

(c) the subject-matter of the European patent extends beyond the content of the application as filed or, if the patent was granted on a divisional application or on a new application filed, beyond the content of the earlier application as filed;

(d) the protection conferred by the European patent has been extended; or 

(e) the proprietor of the European patent is not entitled.

If the grounds for revocation affect the European patent only in part, the patent shall be limited by a corresponding amendment of the claims and revoked in part.

In proceedings before the competent court or authority relating to the validity of the European patent, the proprietor of the patent shall have the right to limit the patent by amending the claims. The patent as thus limited shall form the basis for the proceedings. 

Posted on

Examination of European patent application

In proceedings before it, the European Patent Office shall examine the facts of its own motion; it shall not be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought. The European Patent Office may disregard facts or evidence which are not submitted in due time by the parties concerned.

In proceedings before the European Patent Office the means of giving or obtaining evidence shall include the following: 

(a) hearing the parties; 

(b) requests for information; 

(c) production of documents; 

(d) hearing witnesses; 

(e) opinions by experts; 

(f) inspection; 

(g) sworn statements in writing.

The European Patent Office may, in accordance with the Implementing Regulations, invite the applicant to provide information on prior art taken into consideration in national or regional patent proceedings and concerning an invention to which the European patent application relates. If the applicant fails to reply in due time to an invitation, the European patent application shall be deemed to be withdrawn.

The European Patent Office shall examine, in accordance with the Implementing Regulations, whether the application satisfies the requirements for the accordance of a date of filing.

If a date of filing cannot be accorded, the application shall not be dealt with as a European patent application.

If the European patent application has been accorded a date of filing, the European Patent Office shall examine, in accordance with the Implementing Regulations as well as any other requirement laid down in the Implementing Regulations.

Where the European Patent Office in carrying out the examination notes that there are deficiencies which may be corrected, it shall give the applicant an opportunity to correct them.

If any deficiency noted in the examination is not corrected, the European patent application shall be refused unless a different legal consequence is provided for by this Convention. Where the deficiency concerns the right of priority, this right shall be lost for the application.

The European Patent Office shall, in accordance with the Implementing Regulations, draw up and publish a European search report in respect of the European patent application on the basis of the claims, with due regard to the description and any drawings.

The European Patent Office shall, in accordance with the Implementing Regulations, examine on request whether the European patent application and the invention to which it relates meet the requirements of this Convention. The request shall not be deemed to be filed until the examination fee has been paid.

If no request for examination has been made in due time, the application shall be deemed to be withdrawn.

If the examination reveals that the application or the invention to which it relates does not meet the requirements of the Convention, the Examining Division shall invite the applicant, as often as necessary, to file his observations and to amend the application.

If the applicant fails to reply in due time to any communication from the Examining Division, the application shall be deemed to be withdrawn.

An applicant claiming priority shall file a copy of the results of any search carried out by the authority with which the previous application was filed together with the European patent application, in the case of a Euro-PCT application on entry into the European phase, or without delay after such results have been made available to him. The copy shall be deemed to be duly filed if it is available to the European Patent Office and to be included in the file of the European patent application under the conditions determined by the President of the European Patent Office. The European Patent Office may invite the applicant to provide, within a period of two months, information on prior art.

Proceedings before the European Patent Office shall be interrupted: 

(a) in the event of the death or legal incapacity of the applicant for or proprietor of a European patent or of the person authorised by national law to act on his behalf. To the extent that the above events do not affect the authorisation of a representative as appointed, proceedings shall be interrupted only on application by such representative;

(b) in the event of the applicant for or proprietor of a patent, as a result of some action taken against his property, being prevented by legal reasons from continuing the proceedings; 

(c) in the event of the death or legal incapacity of the representative of an applicant for or proprietor of a patent, or of his being prevented for legal reasons resulting from action taken against his property from continuing the proceedings. 

When, in the cases, the European Patent Office has been informed of the identity of the person authorised to continue the proceedings, it shall notify such person and, where applicable, any third party, that the proceedings will be resumed as from a specified date.

Pages: 1 2 3 4
Posted on

Filing of a European patent application

In proceedings before the European Patent Office, documents may be filed by delivery by hand, by postal services or by means of electronic communication. The President of the European Patent Office shall lay down the details and conditions and, where appropriate, any special formal or technical requirements for the filing of documents. In particular, he may specify that confirmation must be supplied. If such confirmation is not supplied in due time, the European patent application shall be refused; documents filed subsequently shall be deemed not to have been received.

Where the Convention provides that a document must be signed, the authenticity of the document may be confirmed by handwritten signature or other appropriate means the use of which has been permitted by the President of the European Patent Office. A document authenticated by such other means shall be deemed to meet the legal requirements of signature in the same way as a document bearing a handwritten signature which has been filed in paper form.

A European patent application may be filed: 

(a) with the European Patent Office, or 

(b) if the law of a Contracting State so permits with the central industrial property office or other competent authority of that State. Any application filed in this way shall have the same effect as if it had been filed on the same date with the European Patent Office.

The central industrial property office of a Contracting State shall forward to the European Patent Office any European patent application filed with it or any other competent authority in that State, in accordance with the Implementing Regulations. A European patent application the subject of which has been made secret shall not be forwarded to the European Patent Office. A European patent application not forwarded to the European Patent Office in due time shall be deemed to be withdrawn. 

A European divisional application shall be filed directly with the European Patent Office in accordance with the Implementing Regulations. It may be filed only in respect of subject-matter which does not extend beyond the content of the earlier application as filed; in so far as this requirement is complied with, the divisional application shall be deemed to have been filed on the date of filing of the earlier application and shall enjoy any right of priority. All the Contracting States designated in the earlier application at the time of filing of a European divisional application shall be deemed to be designated in the divisional application.

European patent applications may be filed in writing with the European Patent Office in Munich, The Hague or Berlin, or the National authorities. The authority with which the European patent application is filed shall mark the documents making up the application with the date of their receipt, and issue without delay a receipt to the applicant including at least the application number and the nature, number and date of receipt of the documents. 

If the European patent application is filed with an authority, such authority shall without delay inform the European Patent Office of the receipt of the application, and, in particular, of the nature and date of receipt of the documents, the application number and any priority date claimed.

Upon receipt of a European patent application forwarded by the central industrial property office of a Contracting State, the European Patent Office shall inform the applicant accordingly, indicating the date of its receipt. 

The applicant may file a divisional application relating to any pending earlier European patent application. 

A divisional application shall be filed in the language of the proceedings for the earlier application. If the latter was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application; a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application. The divisional application shall be filed with the European Patent Office in Munich, The Hague or Berlin. The filing fee and search fee shall be paid within one month of filing the divisional application. If the filing fee or search fee is not paid in due time, the application shall be deemed to be withdrawn. The designation fee shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report drawn up in respect of the divisional application.

The filing fee and search fee shall be paid within one month of filing the European patent application. The Rules relating to Fees may provide for an additional fee as part of the filing fee if the application comprises more than 35 pages. The additional fee shall be paid within one month of filing the European patent application or one month of filing the first set of claims or one month of filing the certified copy, whichever period expires last.

The designation fee shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report. Where the designation fee is not paid in due time or the designations of all the Contracting States are withdrawn, the European patent application shall be deemed to be withdrawn.

The date of filing of a European patent application shall be the date on which the documents filed by the applicant contain: 

(a) an indication that a European patent is sought; 

(b) information identifying the applicant or allowing the applicant to be contacted; and 

(c) a description or reference to a previously filed application. 

A reference to a previously filed application shall state the filing date and number of that application and the Office with which it was filed. Such reference shall indicate that it replaces the description and any drawings.

Where the application contains a reference, a certified copy of the previously filed application shall be filed within two months of filing the application. Where the previously filed application is not in an official language of the European Patent Office, a translation thereof in one of these languages shall be filed within the same period.

Pages: 1 2 3 4
Posted on

Applying for European Patent

General requirements

Persons entitled to apply for and obtain a European patent

A European patent application may be filed by any natural or legal person, or anybody equivalent to a legal person by virtue of the law governing it. 

A European patent application may also be filed either by joint applicants or by two or more applicants designating different Contracting States.

The inventor shall have the right, vis-à-vis the applicant for or proprietor of a European patent, to be mentioned as such before the European Patent Office. 

The right to a European patent shall belong to the inventor or his successor in title. If the inventor is an employee, the right to a European patent shall be determined in accordance with the law of the State in which the employee is mainly employed; if the State in which the employee is mainly employed cannot be determined, the law to be applied shall be that of the State in which the employer has the place of business to which the employee is attached.

If two or more persons have made an invention independently of each other, the right to a European patent therefor shall belong to the person whose European patent application has the earliest date of filing, provided that this first application has been published.

In proceedings before the European Patent Office, the applicant shall be deemed to be entitled to exercise the right to a European patent.

If by a final decision it is adjudged that a person other than the applicant is entitled to the grant of the European patent, that person may, in accordance with the Implementing Regulations: 

(a) prosecute the European patent application as his own application in place of the applicant; 

(b) file a new European patent application in respect of the same invention; or 

(c) request that the European patent application be refused.

Pages: 1 2 3 4
Posted on

General provisions and terms

The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State.

The grant of a European patent may be requested for one or more of the Contracting States.

 

 

Invention

Patentable inventions

European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application. 

The following in particular shall not be regarded as inventions:

(a) discoveries, scientific theories and mathematical methods; 

(b) aesthetic creations; 

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; 

(d) presentations of information.

Exceptions to patentability

European patents shall not be granted in respect of:  

(a) inventions the commercial exploitation of which would be contrary to “ordre public” or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;  

(b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof; 

(c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods. 


Novelty

An invention shall be considered to be new if it does not form part of the state of the art.

The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application. Additionally, the content of European patent applications as filed, the dates of filing of which are prior to the date and which were published on or after that date, shall be considered as comprised in the state of the art. This not exclude the patentability of any substance or composition, comprised in the state of the art, for use in a method, provided that its use for any such method is not comprised in the state of the art, also not exclude the patentability of any substance or composition for any specific use in a method, provided that such use is not comprised in the state of the art.


Non-prejudicial disclosures

For the EP application, a disclosure of the invention shall not be taken into consideration if it occurred no earlier than six months preceding the filing of the European patent application and if it was due to, or in consequence of:

(a) an evident abuse in relation to the applicant or his legal predecessor, or 

(b) the fact that the applicant or his legal predecessor has displayed the invention at an official, or officially recognised, international exhibition falling within the terms of the Convention on international exhibitions signed at Paris on 22 November 1928 and last revised on 30 November 1972.


Inventive step

An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.


Industrial application

An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.