Developments towards a unitary European patent system

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1 Developments towards a unitary European patent system 3rd workshop The Output of R&D Activities: Harnessing the Power of Patents Data Nikolaus Thumm Chief Economist European Patent Office Seville, 13 June 2011

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 but once granted, patents fall under national law 1973 Diplomatic Conference in Munich : signature of the EPC by 16 countries 1977 Entry into force of the EPC in 7 countries - now 38. 2

3 Our role in the European patent system We provide patent protection in up to 40 European countries based on a single application in one of the three official languages (German, English, French) European patent applications can be filed: directly with the EPO via the national patent offices of the Contracting States based on an international (PCT) application We are also responsible for limitation and revocation proceedings by patentees opposition proceedings by third parties appeal proceedings before the Boards of Appeal Free patent information services Training Free online services 3

4 38 member states EU 27 member states + 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 4

5 The European patent system in a nutshell EPC: Centralised grant procedure conducted in a single language on the basis of uniform patent law a European patent has the same effect, and is subject to the same conditions, as a national patent granted in the relevant state ("bundle of European patents") post-grant phase mainly governed by national law exclusive rights conferred by a European patent (Art. 64(1) EPC) infringement of a European patent (Art. 64(3) EPC) Some EPC provisions take precedence over national law for instance on extent of protection (Art. 69 EPC, cf. also Art. 138 on revocation)) 5

6 The European patent system in a nutshell CHALLENGES Around patents granted by EPO so far subject to national law in the post-grant phase infringement and revocation actions dealt with by national courts Fragmentation of the current European patent system lack of unitary title and absence of unified patent litigation system complex and costly, hampers effective enforcement Multi-forum and parallel litigation disproportionate costs, delays, forum shopping conflicting judgments, unpredictability, legal uncertainty different qualification & experience of judges effect of decisions territorially limited: cross-border injunctions? 6

7 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

8 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 8

9 The unitary patent as a European patent Same grant procedure as for classic European patent Appeal proceedings European patent application Refusal or withdrawal of application Limitation/ revocation/ opposition proceedings Filing and formalities examination Search report with preliminary opinion on patentability Substantive examination 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

10 THANK YOU FOR YOUR ATTENTION 10