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The Community Patent Frequently Asked Questions
Commission Européenne - MEMO/00/41 05/07/2000
Brussels, 5 July 2000
The Community Patent Frequently Asked Questions
What is a patent?
An inventor - an individual or a company or an institution - can apply for a patent on any new invention. Inventions are created by man: the act of invention requires some process. Discoveries, on the other hand, exist already. They may be found, but no additional process is required. Discoveries cannot be patented. To qualify as new, it is important that the invention was not already in use, nor in the public domain no descriptions or technical explanations available prior to the date on which the patent application was filed. Invention is vital to scientific and technological advance but can be expensive in terms of both money and resources. Without the patent system companies would not make the necessary investment.
A patent gives the patent holder a monopoly to exploit the invention commercially for a maximum of 20 years, subject to the payment of regular renewal fees. In return for the right to exploit the invention, the details of how it works are published via the patent application. In this way the scientific or technical know-how that made the invention possible is made public. As a general rule the patent renewal fees increase over time which means that only the most commercially viable patents are maintained for the full period. Anyone wishing to use the invention while it is still patented must request authorisation from the patent holder and may have to pay a licence fee. At the end of the 20 years, the patent lapses.
How do you apply for a patent?
A patent request comprises the application which includes a description of the invention, one or more claims which define the scope of protection provided by the patent, any diagrams necessary to clarify the description or the claims and a brief abstract summarising the invention.
There are essentially three ways of obtaining a patent in Europe:
These different organisations have grown out of progressive attempts to try and simplify the application procedure. Within Europe national patent law has become harmonised over time and in 1973 all EU Member States signed the European Patent Convention (known as the EPC or Munich Convention) which established the European Patent Office (EPO) and a single procedure for granting patents. The Munich Convention, however, is not a Community but an intergovernmental regime.
Similarly, at an international level the Patent Co-operation Treaty (PCT) was agreed in 1970 and has been ratified by 100 countries, including all those of the developed world.
Again the aim is to simplify procedures in a single request for an international patent; the applicant can list a series of countries where he wants the patent to apply. It is however the application procedure that is simplified, the courts of individual countries still rule on whether or not a patent has been infringed or is legally valid.
Through the EPO it is possible within the EU to apply for a so-called European Patent, but this is in essence a bundle of national patents. The application must be filed with the EPO in one of the office's three working languages, English, French or German and must designate those countries within Europe where protection is wanted. But to be legally valid in any particular country there is a requirement that it should still be translated into the language of that country . Moreover it is national courts that adjudicate in cases of dispute.
How does the EPO work?
The EPO has a staff of more than 4000. In 1999, 121,750 patent applications were filed. Once a patent application is filed a search is done to determine that the invention is new and innovative. This involves comparing it to known work in the field, for which the EPO has a huge database. In 1999 the EPO undertook 115,800 searches. The application is then examined in detail to ensure that it complies with all the various legal requirements. This can involve extensive contact between the EPO and the patent applicant. In 1997 the office examined 75,000 applications and granted 35,400 patents. The procedure is transparent anybody with an interest in the application can consult the file and may make observations. If the applicant is not satisfied with the EPO's final decision an appeal may be made to the EPO's Board of Appeal. The whole process from the filing of an application to the granting of a patent can take typically around three to four years.
What makes the present system so expensive?
One of the main factors making the present system so expensive is the need to translate the patent specification into all the official languages of the Member States.
Comparison of costs and fees payable in the EU, the United States and in Japan
How will this proposal change that?
The creation of a Community Patent should change that by removing the current requirement that patents in order to be legally valid in all the Member States of the European Union must be translated into all the official languages of the Member States. The proposal is that the Community Patent once granted and published under the EPO system will become valid without any further translation.
Will the proposal change the language regime of the European Patent Convention (EPC)?
No. The linguistic regime (from application, examination, grant until publication) is pre-determined by the choice to adhere to the EPC. This means that the application will be examined, granted and published in one of the three working languages of the EPO (English, French, German) with a translation of the claims in the two other working languages. This regime is applicable to European Patents and the Community Patents alike as the Community Patent is nothing more than a European Patent requested for the whole of the EC territory. The only choice that is made is that, in contrast to the EPC, an option for Member States to ask for additional translations in their own language is not foreseen. The Community Patent is deemed to be directly valid for the whole of the Community on the basis of the patent as granted by the EPO.
Who rules in cases of dispute?
Currently national courts rule in cases of dispute relating to European Patents since they are treated as national patents. Where a patent holder wishes to bring an action for infringement of his European Patent, it may be necessary to bring actions in a number of Member States. Similarly where someone wants to challenge the validity of a European Patent he may need to bring actions in all the Member States where that European Patent is valid. This requirement to bring actions in more than one jurisdiction within the Community means that litigation involving European Patents is expensive. There is also the possibility of different interpretations in the Member States of how patent law applies in a particular case.
In its proposal, the Commission provides that all disputes relating to the infringement and/or the validity of Community Patents are dealt with by a single new centralised Community tribunal within the framework of the European Court of Justice. Since this work is not covered in the task the Treaty defines for the ECJ, the establishment of this proposed tribunal would require an amendment to the Treaty. This is currently being discussed in the context of the InterGovernmental Conference.
The competence of the tribunal will be limited essentially to disputes concerning infringement and/or validity of Community Patents. Other disputes concerning Community Patents such as ownership disputes will be handled by national courts.
What is a Regulation?
A Regulation is directly applicable to Member States and therefore does not require implementation measures by the Member States, a process that can take some time. The Commission has, hence, in accordance with existing relevant jurisprudence, proposed a Regulation in order to guarantee full legal certainty, something that would be undermined if Member States had the discretion to decide on the effects and administration of the patent once it has been granted. The unity of the Community Patent could not be guaranteed by less "binding" measures.
Sources of further information on patents on the internet:
Commission's IPR Helpdesk
http://www.ipr-helpdesk.org/t_en/i_001_en.asp European Patent Office
DG Internal Market Web-site