EUROPEAN PATENT LAW

'European patent law' covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations.
Patents having effect in European states may be obtained either nationally, via national patent offices, or via a centralised patent prosecution process at the European Patent Office (EPO). In both cases, the application procedure can either be direct or through the international filing procedure provided for by the Patent Cooperation Treaty (PCT). ^[1] The EPO is not a body of the European Union and the states contracting to the European Patent Convention (the legal basis for the EPO) are different to those forming the European Union. ^[2] A patent granted by the EPO does not lead to a single European Union-wide patent enforceable before one single court, but rather to independent national patents enforceable by national courts.
The creation of a community patent system, which would lead to a single unitary patent, has been debated since the 1970s, but those debates have yet to reach agreement on the institution of such a system. The principle problems facing such a system are centered around the language of granted patents and which courts would have jurisdiction. Other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of patents when granted) and litigation, namely the London Agreement and the European Patent Litigation Agreement (EPLA).
The European patent law is also shaped by international legislations such as the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) and the Patent Law Treaty (PLT).

Contents

Types of patent protection in Europe

European patents

National patents

Utility models

Forum shopping, the Brussels Regime and cross-border injunctions

References

See also

External links

Types of patent protection in Europe

A characteristic of European patent law as it stands today is that European patents granted by the European Patent Office (EPO), and patents and utility models ^[3] granted by national patent offices are available and may co-exist within a given jurisdiction.

European patents

Main articles: European Patent Convention

A "European patent" is the product of a unified prosecution phase before the European Patent Office (EPO) under procedures established by the European Patent Convention (EPC). A "European patent" is not a conventional patent; rather, it is a regional, non-unitary patent. Most of the EPC contracting States require the patentee to file a full translation of the granted patent with the national patent office of the State if the text of the European patent as granted is not in one of their official languages, otherwise the patent is deemed to be have no effect from the outset in that State. The European patent can be revoked under the laws of a Contracting State on certain grounds (specified in EPC Articles 138 and 139) with effect only in that State. A common opposition proceeding before the EPO is available however.

National patents

National patents are available in all European countries. In some European countries, national patents are substantively examined, while in other countries there is no provision for such examination.
In the United Kingdom, for example, the Patents Act 1977 and the Patents Act 2004 establish the law relating to patents including filing, examination, grant, infringement, revocation, assignment. UK law is in many ways similar to the European Patent Convention (although the EPC does not deal with post-grant activities).

Utility models

In Europe, utility models are available in Austria (''Gebrauchsmuster''), France ("''certificat d'utilité''"), Germany (''Gebrauchsmuster''), and Spain (this list is however ''non-exhaustive''). The term of a utility model is usually shorter than the term of a patent.

Forum shopping, the Brussels Regime and cross-border injunctions

Main articles: Brussels Regime

References

1. However, eleven EPC Contracting States (Belgium, Cyprus, France, Greece, Ireland, Italy, Latvia, Malta, Monaco, the Netherlands and Slovenia) have "''closed their national route''". This means that it is no longer possible to obtain a national patent protection through the international (PCT) phase without entering into the regional European phase and obtaining a European patent. (For Malta, source: "European Patent Office web site, ''Accession to the PCT by Malta (MT)'', Information from the European Patent Office, January 2, 2007; for Latvia, source: ''Latvia: Closing of the National Route via the PCT'', PCT Newsletter of April 2007).
2. EPO web site, List of Contracting States of the European Patent Organisation: ''EPO member states''. Retrieved on September 7, 2006.
3. Utility models, which are available under some national jurisdictions, are also called "petty patents", "utility certificates" or "''Gebrauchsmuster''" (in Germany and Austria).

See also

★ European Union patent law

★ Brussels Regime, i.e. Brussels Convention, the Lugano Convention, and the Brussels I Regulation (Council Reg (EC) 44/2001)

★ European trade mark law

★ Japanese patent law

★ United States patent law

★ Eurasian Patent Convention (EAPC)

★ Intellectual property in Romania

External links

★ Patent Litigation in Europe 2005 report by Lovells comparing patent litigation before various EU national courts, and the differences between them.