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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.

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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.

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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.

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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.