Introduction to the European Patent Office and the European patent system

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1 Introduction to the European Patent Office and the European patent system Michaël De Smet European Patent Office Contents The European Patent Convention The European Patent Office The European patent grant procedure Facts and figures Future legal developments LLM in Intellectual Property Torino, 2-3 October 202

2 The European Patent Convention The European Patent Convention (EPC) provides the legal framework for the granting of European patents via a centralised procedure establishes the European Patent Organisation Diplomatic Conference in Munich Entry into force of the EPC in 7 first countries (BE,DE,FR,LU,NL,CH,GB) Accession of the two most recent members (Albania, Serbia) Today - 38 member states The European Patent Convention All 27 EU countries: Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden United Kingdom and more: Albania Croatia Iceland Liechtenstein Former Yugoslav Republic of Macedonia Monaco Norway San Marino Serbia Switzerland Turkey European patent applications and patents can also be extended at the applicant's request to the following states: Bosnia-Herzegovina Montenegro

3 The European Patent Office The European Patent Organisation has two bodies: the European Patent Office: executive body the Administrative Council: legislative body, composed of representatives of member states The European Patent Office Locations Five locations Headquarters in Munich Staff approximately % patent examiners Official languages German, English, French

4 The European Patent Office The European Patent Office offers a single centralised search and examination procedure in one of the three official languages leading to a unique decision enforceable into up to 40 states, a market of 580 million people The European Patent Office Routes towards patent protection in Europe. The national route separate procedure for each state procedures differ according to national law 2. The regional route The European Patent Convention DE IT UK DE IT UK one application filed at one office one procedure one European patent for up to 40 states results in a bundle of national patents E P 3. via the international route The PCT System D IT E FI T N R R O O one application for 85 member states 4. (The unitary patent, coming soon) does not lead to patent until it has been "nationalised" through national offices or the EPO

5 The European patent grant procedure (I) Applicant Refusal or withdrawal of application European patent application Validation in designated states CZ y Filing and formalities examination Search and search report together with preliminary opinion on patentability Substantive examination Grant of European patent 8 months Publication of application and search report Public domain Online access to application file and legal status information Publication of patent specification Observations by third parties possible The European patent grant procedure (II) Applicant EPO Refusal of application Substantive examination Grant of European patent Limitation or revocation proceedings Opposition proceedings Public domain Opposition by third parties possible filed within 9 months of mention of the grant Appeal proceedings NO RO DE y IT EPO IE FI

6 Facts and figures Total European patent filings Direct European filings under the EPC and International filings under the PCT Facts and figures Origin of European patent filings (20) Direct European filings under the EPC and International filings under the PCT

7 Facts and figures Outcome of proceedings % % % 24% 2% 29% 28% 50% 49% % 3% 43% 47% % 42% 2009 Abandoned after search Stopped during examination Granted Figures relate to patents granted and applications refused by the EPO and applications withdrawn by the applicant. Oppositions and appeals are not included. Future legal developments - The Unitary Patent Key facts Basic principles a European patent granted under the EPC unitary effect for the territories of the 25 EU member states currently participating, at the applicant's request co-existence with the existing European patent and national patents validated in one single administrative step by the EPO for all the participating states in the language in which it was granted language regime being finalised; transition measures foreseen Objective European Council Presidency and EU Commission intend to have the first unitary patent granted in 204

8 Future legal developments - The Unitary Patent Advantages For inventors protection in one single step for the 25 states currently participating significant cost savings (translation, validation, administration) simplified validation procedure (instead of up to 25 different procedures) simplified and more cost-efficient renewal procedure increased legal certainty due to uniform litigation system For Europe optimal protection in the participating states as a whole better framework conditions for innovative companies and organisations simplified European protection mechanism for companies from outside Europe improved competitiveness of the European patent system Future legal developments - The Unitary Patent Same grant procedure as for classic European patent Appeal proceedings Refusal or withdrawal of application European patent application Filing and formalities examination Search report with preliminary opinion on patentability Substantive examination Limitation/ revocation/ opposition proceedings Grant of European patent At the request of the patent proprietor UNITARY PATENT for the territories of the 25 participating states The unitary patent replaces the individual effects of the European patent in the 25 participating states

9 Future legal developments - The Unified Patent Court Current issues of patent litigation in Europe National infringement and revocation proceedings Possibly leads to conflicting decisions, as application and interpretation of European patent law not fully harmonised Results in legal uncertainty and high costs "Forum shopping" due to differences in practice and procedural law Future legal developments - The Unified Patent Court Proposed structure One unitary court dealing with disputes related to classic and unitary European patents Two European instances: Court of First Instance & Court of Appeal Court of First Instance is composed of - Local and Regional Divisions, as well as Central Division - Up to 3 local divisions per contracting state if workload justifies it Court of Appeal is centralised Multinational composition of the panels At European Council of 29 June 202, location of Central Division agreed: - Seat in Paris - Thematic clusters in London (mainly chemistry, pharmaceuticals, human necessities) and Munich (mechanical engineering)

10 Future legal developments Further readings Proposal for implementing enhanced cooperation in the area of the creation of unitary patent protection Document COM (20) 025, European Commission, 3 April 20 Draft agreement on a Unified Patent Court and draft Statute Document no 674/, Council of the European Union, November 20 Further information On access to: Brochures on European patents and the grant procedure Legal texts (EPC, Guidelines, Case Law, etc) Patent information tools - European Patent Register all procedural information on all European patent applications from the moment they are published, including post-grant information - Espacenet free access to more than 70 million patent documents worldwide