European Patent Convention
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{{European patent law}}
[[Image:EuropeanPatentConvention 2008.PNG|thumb|right|European Patent Convention Contracting States in green, extension agreement states in red from [[January 1]] [[2008]]]]
The '''Convention on the Grant of European Patents''' of [[5 October]] [[1973]], commonly known as the '''European Patent Convention''' (EPC), is a multilateral [[treaty]] instituting the [[European Patent Organisation]] and providing an autonomous [[law|legal]] system according to which '''European patents''' are granted. The term ''European patent'' is used to refer to [[patent]]s granted under the European Patent Convention. However, after grant a European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents, <ref name="SingerArt2andScourfield"> The view that a European patent issues as independent national patents in each designated Contracting state is very convenient from a practical point of view. Some however consider this view as incorrect:
:"''The view that, after grant, a European patent breaks up into a bundle of national patents in designated Contracting States may appear plausible, but it is incorrect both in law and systematically''", Singer/Stauder, ''The European Patent Convention, A Commentary'', Munich, 2003, under Article 2.
Singer/Stauder's view seems in turn rather theoretical in view of decisions ''Roche Nederland BV v Primus'' and ''GAT v LUK'' of the [[European Court of Justice]] (see also "Enforcement and validity" section), which reinforced the independent character of a European patent in each Contracting State. As Tom Scourfield wrote it in an article commenting these two decisions:
:"''(...) a European patent is no more than a bundle of national patents pursuant to a single application. Until a true community patent becomes a reality it seems likely that true community enforcement will continue to elude patent owners.''" Tom Scourfield, ''Jurisdiction and Patents: ECJ rules on forum for validity and cross-border patent enforcement'', The CIPA Journal, August 2006, Volume 35 No. 8, p. 535. </ref> subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited [[opposition procedure before the European Patent Office|opposition procedure]], which can be initiated by any person except the patent proprietor, and [[limitation and revocation procedures]], which can be initiated by the patent proprietor only.
The EPC provides a legal framework for the granting of European patents,<ref> {{EPC Article|2|1}} </ref> via a single, harmonized procedure before the [[European Patent Organisation|European Patent Office]]. A single [[patent application]] in one language,<ref> {{EPC Article|14}} </ref> may be filed at the European Patent Office at [[Munich]],<ref name="Art75-1-a"> {{EPC Article|75|1|a}} </ref> at its branches at [[The Hague]]<ref name="Art75-1-a"/> or [[Berlin]]<ref> ''[http://www.european-patent-office.org/legal/anc_reg/en/ap_i_a10_2_1989_218.htm#OJ_1989_218 Decision of the President of the European Patent Office dated 10 May 1989 on the setting up of a Filing Office in the Berlin sub-office of the European Patent Office]'', OJ 1989, 218 </ref> or at a national patent office of a Contracting State, if the national law of the State so permits.<ref name="Art75-1-b"> {{EPC Article|75|1|b}} </ref> This latter provision is important in countries such as the [[United Kingdom]], in which it is an offence for a UK resident to file a patent application for [[invention]]s in certain sensitive areas abroad without obtaining clearance through the [[United Kingdom Intellectual Property Office]] first.<ref> United Kindgom Patents Act 1977, [http://ukpatents.wikispaces.com/Security+and+Safety?token=c06484548bdd7cae0abcab2a1c9523d8 ''ss 22-23: Security and safety'']</ref>
There is currently no single, centrally enforceable, [[European Union]]-wide patent. Since the 1970s, there has been concurrent discussion towards the creation of a [[Community patent]] in the European Union. In May 2004 however, this has led to a stalemate and the prospect of a single EU-wide patent is receding.
{{clearright}}
{| class="wikitable" style="width:35%; height:200px" border="1" align="right"
|+ '''Contracting States to the European Patent Convention, with respective date of entry into force'''
! style="width:130px" |Date
! Entry into force
|-
|valign="top"| [[7 October]] [[1977]] || [[Belgium]], [[Germany]] (then [[West Germany]]), [[France]], [[Luxembourg]], [[Netherlands]], [[Switzerland]], [[United Kingdom]]
|-
|valign="top"|[[1 May]] [[1978]] || [[Sweden]]
|-
|valign="top"|[[1 December]] [[1978]] || [[Italy]]
|-
|valign="top"|[[1 May]] [[1979]] || [[Austria]]
|-
|valign="top"|[[1 April]] [[1980]] || [[Liechtenstein]]
|-
|valign="top"|[[1 October]] [[1986]]|| [[Greece]], [[Spain]]
|-
|valign="top"|[[1 January]] [[1990]] || [[Denmark]]
|-
|valign="top"|[[1 December]] [[1991]] || [[Monaco]]
|-
|valign="top"|[[1 January]] [[1992]] || [[Portugal]]
|-
|valign="top"|[[1 August]] [[1992]] || [[Ireland]]
|-
|valign="top"|[[1 March]] [[1996]] || [[Finland]]
|-
|valign="top"|[[1 April]] [[1998]] || [[Cyprus]]
|-
|valign="top"|[[1 November]] [[2000]] || [[Turkey]]
|-
|valign="top"|[[1 July]] [[2002]] || [[Bulgaria]], [[Czech Republic]], [[Estonia]], [[Slovakia]]
|-
|valign="top"|[[1 December]] [[2002]]|| [[Slovenia]]
|-
|valign="top"|[[1 January]] [[2003]]|| [[Hungary]]
|-
|valign="top"|[[1 March]] [[2003]]|| [[Romania]]
|-
|valign="top"|[[1 March]] [[2004]]|| [[Poland]]
|-
|valign="top"|[[1 November]] [[2004]]|| [[Iceland]]
|-
|valign="top"|[[1 December]] [[2004]]|| [[Lithuania]]
|-
|valign="top"|[[1 July]], [[2005]]|| [[Latvia]]
|-
|valign="top"|[[1 March]], [[2007]]|| [[Malta]]
|-
|valign="top"|[[1 January]], [[2008]]|| [[Norway]], [[Croatia]]
|}
{{clearright}}
{| class="wikitable" style="width:35%" border="1" align="right"
|+ '''States with an extension agreement with the European Patent Office, with respective date of entry into force'''
! style="width:130px" |Date
! Entry into force
|-
|valign="top"|[[1 February]] [[1996]]|| [[Albania]]
|-
|valign="top"|[[1 November]] [[1997]]|| [[Republic of Macedonia]]
|-
|valign="top"|[[1 November]] [[2004]]|| [[Serbia]]
|-
|valign="top"|[[1 December]] [[2004]]|| [[Bosnia and Herzegovina]]
|}
{{clearright}}
{| class="wikitable" style="width:35%" border="1" align="right"
|+ '''States which had an extension agreement with the EPO, and which are now Contracting States to the EPC'''<ref> [http://www.epo.org/patents/law/legal-texts/html/guiex/e/foreword_7.htm ''Guidelines for Examination in the EPO, General Part, Extension to states not party to the EPC'']. </ref>
! style="width:250px" |Period during which the agreement applied
! States
|-
|valign="top"| [[1 March]] [[1994]] - [[30 November]] [[2002]] || [[Slovenia]]
|-
|valign="top"| [[1 March]] [[1994]] - [[31 December]] [[2007]] || [[Croatia]]
|-
|valign="top"| [[5 July]] [[1994]] - [[30 November]] [[2004]] || [[Lithuania]]
|-
|valign="top"| [[1 May]] [[1995]] - [[30 June]] [[2005]] || [[Latvia]]
|-
|valign="top"| [[15 October]] [[1996]] - [[28 February]] [[2003]] || [[Romania]]
|}
==Background and rationale==
Before 1978, two important problems when seeking to obtain patent protection in Europe in a number of countries were first the need to file a separate patent application in each country, with a subsequent distinct grant procedure in each country, and secondly the need to translate the text of the application into a number of different languages. Different languages are indeed utilised across the European countries and there is substantial expense in preparing translations into each of those languages. While the European Patent Convention does not totally overcome the need for translations (since a translation may be required after grant to validate a patent in a given EPC Contracting State), it does centralise the prosecution in one language and defers the cost of translations until the time of grant.
== History ==
In September 1949, French Senator [[Henri Longchambon]] proposed to the [[Council of Europe]] the creation of a European Patent Office. His plan was however not found to be practicable by the Council's Committee of Experts in patent matters. The meetings of the Committee nevertheless led to two Conventions, one on the formalities required for patent applications (1953) and one on the [[European Convention on the International Classification of Patents for Invention|international classification of patent]] (1954). <ref name="Tookey"> G. W. Tookey, ''Patents in the European Field'' in Council of Europe, Council of Europe staff, ''European Yearbook 1969'', Martinus Nijhoff Publishers, 1971, pages 76-97, ISBN 9024712181. </ref> The Council's Committee then carried on its work on substantive patent law, resulting in the signature of the [[Strasbourg Patent Convention]] in 1963. <ref name="Tookey"/>
In 1973, the ''Munich Diplomatic Conference for the setting up of a European System for the Grant of Patents'' took place and the Convention was then signed in Munich (the Convention is sometimes known as the '''Munich Convention'''). The signature of the Convention was the accomplishment of a [[1960s|decade]]-long discussion during which [[Kurt Haertel]], considered by many as the father of the European Patent Organisation, and [[François Savignon]] played a decisive role.
The Convention entered into force on [[7 October]] [[1977]] for the following first countries: [[Belgium]], [[Germany]] (then [[West Germany]]), [[France]], [[Luxembourg]], [[Netherlands]], [[Switzerland]] and [[United Kingdom]], and on [[1 May]] [[1978]] for [[Sweden]]. However, the first patent applications were filed on [[1 June]] [[1978]] (date fixed by the [[European Patent Organisation#Administrative Council|Administrative Council]] which held its first meeting on [[19 October]] [[1977]]). Subsequently, other countries have joined the EPC.
The EPC is separate from the European Union, and its membership is different; [[Switzerland]], [[Liechtenstein]], [[Turkey]], [[Monaco]], [[Iceland]], [[Norway]] and [[Croatia]] are members of the EPO but are not members of the EU. The Convention is now (as of January 2008) in force in 34 countries.<ref> EPO web site, [http://www.epo.org/about-us/epo/member-states.html ''EPO member states''], retrieved on January 1, 2008 </ref>
In addition to the Contracting States, States may also conclude a cooperation agreement with the EPO, known as an extension agreement. The state then becomes "extension state", which means European patents granted by the EPO may be extended to those countries by the payment of additional fees and completion of certain formalities. The following 4 states have concluded extension agreements with the EPO, so that in effect, these states can be designated as well in a European patent application: [[Albania]], [[Bosnia and Herzegovina]], Former Yugoslav [[Republic of Macedonia]], and [[Serbia and Montenegro]] (formerly known as the Federal Republic of Yugoslavia).
A diplomatic conference was held in November 2000 in Munich to revise the Convention, amongst other things to integrate in the EPC new developments in [[international law]] and to add a level of judicial review of the [[Appeal procedure before the European Patent Office|Boards of Appeal]] decisions. The revised text, informally called the [[EPC 2000]], entered into force on [[December 13]], [[2007]].<ref> [[Official Journal of the European Patent Office|Official Journal of the EPO]], 2/2006, [http://www.epo.org/patents/law/legal-texts/InformationEPO/archiveinfo/06022006.html ''Notice from the European Patent Office dated 27 January 2006 concerning deposit of the fifteenth instrument of ratification of the EPC Revision Act''] </ref> <ref> EPO web site, [http://www.epo.org/patents/law/legislative-initiatives/epc2000/faq.html#answer2 ''Frequently asked questions about the revised European Patent Convention (EPC 2000)''], item 2. Consulted on October 31, 2007. </ref>
As a recent development, which entered into force on [[May 1]] [[2008]], the [[London Agreement (2000)|London Agreement]] aims to further reduce the cost of translation by limiting the number of translations required.
== Content ==
The content of the Convention includes several texts in addition to the [http://www.epo.org/patents/law/legal-texts/html/epc/2000/e/ma1.html main 178 articles]. These additional texts, which are integral parts of the Convention,<ref> {{EPC Article|164|1}} </ref> are
* the [http://www.european-patent-office.org/legal/epc/e/ma2.html "Implementing Regulations to the Convention on the Grant of European patents"], commonly known as the "Implementing Regulations";
* the [http://www.european-patent-office.org/legal/epc/e/ma4.html#REC "Protocol on Jurisdiction and the recognition of decisions in respect of the right to the grant of a European patent"], commonly known as the "Protocol on Recognition". This protocol deals with the right to the grant of a European patent but exclusively applies to European patent applications.
* the [http://www.european-patent-office.org/legal/epc/e/ma5.html#IMM "Protocol on Privileges and Immunities of the European Patent Organisation"], commonly known as the "Protocol on Privileges and Immunities";
* the [http://www.european-patent-office.org/legal/epc/e/ma3.html#CEN "Protocol on the Centralisation of the European Patent System and on its Introduction"], commonly known as the "Protocol on Centralisation";
* the [http://www.european-patent-office.org/legal/epc/e/ar69.html "Protocol on the Interpretation of Article 69 of the Convention"].
== Substantive patent law ==
One of the most important articles of the Convention, {{EPC Article|52|1}}, entitled "''Patentable [[invention]]s''", states:
:"''European patents shall be granted for
:* ''any inventions
:* ''which are susceptible of [[industrial applicability|industrial application]],
:* ''which are [[novelty (patent)|new]],<ref> The state of the art is further defined in Art. 54(2)-(5), and a limited grace period is specified in {{EPC Article|55}}, but this is only relevant in cases of breach of confidence or disclosure of the invention in a recognised international exhibition. </ref> and
:* ''which involve an [[inventive step and non-obviousness|inventive step]]''".
This article constitutes the "fundamental provision of the EPC which governs the patentability of inventions". <ref name="T 154/04-r6"> [http://legal.european-patent-office.org/dg3/biblio/t040154ex1.htm Decision T 154/04] of November 15, 2006, Reasons 6, to be published at the [[Official Journal of the European Patent Office]]. </ref>
However, the EPC provides further indications on what is patentable, by introducing exceptions. There are exceptions by virtue of the nature of the patent system (Article 52(2) and (3)) and exceptions by virtue of [[policy]] (Articles 52(4) and 53).
First, [[discovery (observation)|discoveries]], [[theory|scientific theories]], mathematical methods, <ref> {{EPC Article|52|2|a}}</ref> aesthetic creations, <ref> {{EPC Article|52|2|b}}</ref> schemes, rules and methods for performing mental acts, playing games or doing business, programs for computers <ref> {{EPC Article|52|2|c}}</ref> and presentations of information <ref> {{EPC Article|52|2|d}}</ref> are not regarded as inventions <ref> {{EPC Article|52|2}}</ref> and are excluded from patentability only to the extent that the invention relates to those areas ''as such''. <ref> {{EPC Article|52|3}}</ref> This negative, non-exhaustive list <ref name="T 154/04-r6"/> of exceptions, by virtue of the nature of the patent system, have been introduced as a way to illustrate what cannot be patentable due to the nature of the patent system, i.e. a patentable subject-matter should usually be directed to some physical product or process. ''(For further information, see also: [[Software patents under the European Patent Convention|Software patents under the EPC]]).''
The second set of exceptions, the exceptions by virtue of policy, include
* methods for treatment of the human or animal body by [[surgery]] or therapy, and [[diagnosis|diagnostic]] methods practised on the human or animal body,<ref> {{EPC Article|52|4}} {{old fact}} <!-- To be converted to EPC 2000 --> </ref>
* inventions contrary to "''ordre public''" or morality<ref> {{EPC Article|53|a}} </ref> and
* plant or animal varieties and essentially biological processes for the production of plants an animals.<ref> {{EPC Article|53|b}} </ref>
== Unified prosecution phase ==
{{main|Grant procedure before the European Patent Office}}
The Convention also includes provisions setting out filing requirements of European applications, the procedure up to grant, the opposition procedure and other aspects relating to the prosecution of patent applications under the Convention.
European patent applications may be filed in any official language of an EPC contracting state (subject to certain requirements), {{old fact}} <!-- To be converted to EPC 2000 --> but patent applications are prosecuted in the three official languages of the EPO - [[English language|English]], [[French language|French]] and [[German language|German]] (if an application is filed in a language other than the official languages, a translation must be filed into one of the three. The filing fee is reduced to offset the additional cost of the translation). The official language of filing (or of the translation) is adopted as the "language of proceedings" and is used by the EPO for communications.
European patent applications are [[patent prosecution|prosecuted]] in a similar fashion to most patent systems - the invention is searched and published, and subsequently examined for compliance with the requirements of the EPC.
During the prosecution phase, a European patent is a single regional proceeding, and "the grant of a European patent may be requested for one or more of the Contracting States."<ref> {{EPC Article|3}} </ref> An applicant for a European patent designates those Contracting States in which protection for the [[invention]] is desired,<ref> {{EPC Article|79}} </ref> {{old fact}} <!-- To be converted to EPC 2000 --> and the designations need to be "confirmed" later during the procedure through the payment of designation fees.<ref> {{EPC Article|79|2}} </ref> Once granted by the EPO,<ref> {{EPC Article|4}} </ref> a European patent comes into existence effectively as a group of national patents in each of the designated Contracting States.
==Opposition==
{{main|Opposition procedure before the European Patent Office}}
There are only two types of centrally executed procedures after grant, the opposition procedure and the [[limitation and revocation procedures before the European Patent Office|limitation and revocation procedures]]. The opposition procedure, governed by the EPC, allows third parties to file an opposition against a European patent within 9 months of the date of grant of that patent.<ref> {{EPC Article|99}} </ref> It is a [[quasi-judicial body|quasi-judicial]] process, subject to appeal, which can lead to maintenance, maintenance in amended form or revocation of a European patent. Simultaneously to the opposition, a European patent may be the subject of litigation at a national level (for example an infringement dispute). National courts may suspend such infringement proceedings pending outcome of the opposition proceedings to avoid proceedings running in parallel and the uncertainties that may arise from that.
== Grant, effect and need for translations ==
In contrast to the unified, regional character of a European patent application, the granted European patent does not comprise, in effect, any such unitary character, except for the opposition procedure.<ref> In addition to the opposition procedure and even after it has ended, particular acts can still be performed before the European Patent Office, such as requesting a rectification of an incorrect designation of inventor under {{EPC Rule|19|1}}. {{old fact}} <!-- To be converted to EPC 2000 --> "Rectification may [indeed] be requested after the proceedings before the EPO are terminated" (Guid. A III 5.6). </ref> In other words, one European patent in one Contracting State<ref> There is no consistent usage of a particular expression to refer to "the European patent in a particular designated Contracting State for which it is granted". The article uses the expression "a European patent in a Contracting State" which is considered to be the most consistent with the authoritative text, i.e. the EPC. </ref> is effectively independent of the same European patent in each other Contracting State, except for the opposition procedure.
A European patent confers rights on its proprietor, in each Contracting State in respect of which it is granted, from the date of publication of the mention of its grant in the [[European Patent Bulletin]].<ref> {{EPC Article|64|1}}: EP patent has same effect as national patent in "each Contracting State in respect of which it is granted"; {{EPC Article|97|2) and (4}}: decision to grant "for the designated Contracting States" is made by the examining division. </ref> That is also the date of publication of the B1 document, i.e. the European patent specification.<ref> {{EPC Article|98}} </ref> This means that the European patent is granted and confers rights in all its designated Contracting States at the date of mention of the grant, whether or not a prescribed translation is filed with a national patent office later on (though the right may later be deemed never to have existed in any particular State if a translation is not subsequently filed in time, as described below).
A translation of a granted European patent must be filed in some EPC Contracting States to avoid loss of right. Namely, in the Contracting States which have "prescribe[d] that if the text, in which the European Patent Office intends to grant a European patent (...) is not drawn up in one of its official languages, the applicant for or proprietor of the patent shall supply to its central industrial property office a translation of this text in one of its official languages at his option or, where that State has prescribed the use of one specific official language, in that language".<ref> {{EPC Article|65|1}} </ref> The European patent is ''[[void ab initio]]'' in a designated Contracting State where the required translation (if required) is not filed within the prescribed time limit after grant.<ref> {{EPC Article|65|3}} </ref> In other Contracting States, no translation needs to be filed, for example in [[Ireland]] if the European patent is in [[English language|English]]. In those Contracting States where the [[London Agreement (2000)|London Agreement]] is in force the requirement to file a translation of the European patent has been entirely or partially waived. If a translation is required, a fee covering the publication of said translation may be due as well.<ref> {{EPC Article|65|2}}; [http://www.european-patent-office.org/legal/national/html/en/iv/index.htm National law, Chapter IV, Filing of translations of the patent specification under Article 65 EPC] (regarding implementation in EPC Contracting States) </ref>
== Enforcement and validity ==
{{main|Enforcement of European patents}}
Almost all attributes of a European patent in a Contracting State, i.e. ownership, validity, and infringement, are determined independently under respective national law, except for the opposition procedure and limitation and revocation procedure as discussed above. Though the EPC imposes some common limits, the EPC expressly adopts national law for interpretation of all substantive attributes of a European patent in a Contracting State, with a few exceptions.<ref> e.g. {{EPC Article|2|2}}, {{EPC Article|64|1) and(3}}, {{EPC Article|66}}, {{EPC Article|74}} </ref> Thus, almost all post-grant proceedings - including [[renewal (patent)|renewal]], revocation, {{old fact}} <!-- To be converted to EPC 2000 --> and [[patent infringement|infringement enforcement]] are determined under national law.
[[patent infringement|Infringement]] is remitted almost entirely to national law and to national courts.<ref> {{EPC Article|64|1}} </ref> In one of its very few substantive interventions into national law, the EPC requires that national courts must consider the "direct product of a patented process" to be an infringement.<ref> {{EPC Article|64|2}} </ref> The "extent of the protection" conferred by a European patent is determined primarily by reference to the claims of the European patent (rather than by the disclosure of the specification and drawings, as in some older patent systems), though the description and drawings are to be used as interpretive aids in determining the meaning of the claims.<ref> {{EPC Article|69|1}} </ref> A "Protocol on the Interpretation of Article 69 EPC" provides further guidance, that claims are to be construed using a "fair" middle position, neither "strict, literal" nor as mere guidelines to considering the description and drawings, though of course even the protocol is subject to national interpretation.<ref> ''E.g.'', ''Southco Inc v Dzus'', [1992] R.P.C. 299 CA; ''Improver Corp. v Remington Products Inc'' [1990] FSR 181. </ref> The authentic text of a European patent application and of a European patent are the documents in the language of the proceedings.<ref> {{EPC Article|70}} </ref><ref name="SingerArt2Precedence"> Singer/Stauder, ''The European Patent Convention, A Commentary'', Munich, 2003, under Article 2, section "EPC provisions on European patents that take precedence over national law" </ref>
All other substantive rights attached to a European patent in a Contracting State, such as what acts constitute infringement (indirect and divided infringement, infringement by equivalents, extraterritorial infringement, infringement outside the term of the patent with economic effect during the term of the patent, infringement of product claims by processes for making or using, exports, assembly of parts into an infringing whole, etc.), the effect of prosecution history on interpretation of the claims, remedies for infringement or bad faith enforcement (injunction, damages, attorney fees, other civil penalties for willful infringement, etc.), equitable defenses, coexistence of an EP national daughter and a national patent for identical subject matter, ownership and assignment, extensions to patent term for regulatory approval, etc., are expressly remitted to national law.<ref> {{EPC Article|2|2}} </ref>
For a period in the late-1990's, national courts issued cross-border injunctions covering all EP jurisdictions, but this has been limited by the [[European Court of Justice]]. In two cases in July 2006 interpreting Articles 6.1 and 16.4 of the [[Brussels Regime|Brussels Convention]], the European Court of Justice held that European patents are national rights that must be enforced nationally, that it was "unavoidable" that infringements of the same European patent have to be litigated in each relevant national court, even if the lawsuit is against the same group of companies, and that cross-border injunctions are not available.<ref> [http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Rechercher$docrequire=alldocs&numaff=C-4/03&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100 Case C-4/03, ''Gesellschaft für Antriebstechnik v Lamellen und Kupplungsbau Beteiligungs KG'', (European Ct. of Justice 13 July 2006)]; [http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Rechercher$docrequire=alldocs&numaff=C-539/03&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100 Case C-539/03, ''Roche Nederland BV v Primus'', (European Ct. of Justice 13 July 2006)] </ref>
Validity is also remitted largely to national law and national courts. {{EPC Article|138|1}} limits the application of national law to only the following grounds of invalidity, and specifies that the standards for each ground are those of national law:
* if the subject-matter of the European patent is not patentable within the terms of Articles 52 to 57 EPC (see "Substantive patent law" section above)
* if the disclosure does not permit the invention to be carried out by a person skilled in the art<ref> {{EPC Article|138|1|b}} </ref>
* if amendments have been made such that the subject-matter extends beyond the content of the application as filed<ref> {{EPC Article|138|1|c}}, {{EPC Article|123|2}} </ref>
* if the claims have been broadened post-grant, e.g. in opposition proceedings<ref>{{EPC Article|138|1|d}}, {{EPC Article|123|3}} </ref>
* an improper proprietor<ref> {{EPC Article|138|1|e}}, {{EPC Article|60}} </ref>
A national court may partially invalidate a European patent in a Contracting State, e.g., by revoking only some claims, or by permitting amendment to the claims, the description or the drawings, as allowed by national law.
A European patent is also non-unitary in that it may be revoked in one Contracting State while maintained in another. However, a national court in one Contracting State may not revoke a European patent in another Contracting State.
EPO Boards of Appeal decisions are not precedential at all upon national courts, which have exclusive jurisdiction on validity and infringement after a European patent has been granted (except during the 9 month opposition period, which can only relate to validity). However, national courts will tend to take note, and may find 'persuasive', decisions of the EPO Boards, though they can disagree with them.
The EPC requires all jurisdictions to give a European patent a term of 20 years from the filing date,<ref> {{EPC Article|63|1}} </ref> the filing date being the actual date of filing an application for a European patent or the date of filing of an international application under the [[Patent Cooperation Treaty|PCT]] designating the EPO. The filing date is not necessarily the [[priority right|priority date]], which can be up to one year earlier. The term of a granted European patent may be extended under national law if national law provides term extension to compensate for pre-marketing regulatory approval.<ref> {{EPC Article|63|2|b}} </ref> For [[European Economic Area|EEA]] member states this is by means of a [[supplementary protection certificate]].
== Relation with the Patent Cooperation Treaty ==
A European patent application may result from the filing of an international application under the [[Patent Cooperation Treaty]] (PCT) and the entry into "European regional phase". The European patent application is therefore said to be a "Euro-PCT application" and the EPO is said to act as a designated or elected Office. <ref> Guidelines for Examination in the EPO, A.VII. [http://www.european-patent-office.org/legal/gui_lines/e/a_vii.htm Applications under the Patent Cooperation Treaty (PCT) before the EPO acting as a designated or elected Office.] </ref>
Eleven EPC Contracting States, namely [[Belgium]], [[Cyprus]], [[France]], [[Greece]], [[Ireland]], [[Italy]], [[Latvia]], [[Malta]], [[Monaco]], [[the Netherlands]] and [[Slovenia]] have "''closed their national route''". <ref> For Malta, source: "European Patent Office web site, [http://www.epo.org/patents/law/legal-texts/InformationEPO/archiveinfo/02012007.html ''Accession to the PCT by Malta (MT)''], Information from the European Patent Office, January 2, 2007; for Latvia, source: [http://www.wipo.int/edocs/pctndocs/en/2007/pct_news_2007_4.pdf ''Latvia: Closing of the National Route via the PCT''], [[PCT Newsletter]] of April 2007. </ref> 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.
== Notes ==
{{reflist|2}}
== References ==
* Martijn van Empel, ''The Granting of European Patents, Introduction to the Convention on the Grant of European Patents, Munich, [[5 October]] [[1973]]'', [[Kluwer Academic Publishers Group]], 1975, ISBN 90-286-0365-4
* Gerald Paterson, ''The European Patent System: The Law and Practice of the European Patent Convention'', [[Sweet & Maxwell]], second edition, 2001, ISBN 0-421-58600-1
* [[Margarete Singer|Singer]] & [[Dieter Stauder|Stauder]], ''The European Patent Convention - A Commentary'', Sweet & Maxwell, 2003, ISBN 0-421-83150-2
== See also ==
See [[List of patent legal concepts]] for articles on various legal aspects of patents, including special types of patents and patent applications.
* [[European patent law]]
* [[Convention on the Unification of Certain Points of Substantive Law on Patents for Invention|Strasbourg Convention]] (1963)
* [[European Patent Litigation Agreement]] (EPLA)
* [[Vienna Convention on the Law of Treaties]] (1969) - ''although the Vienna Convention entered into force on [[January 27]], [[1980]], i.e. after the entry into force of the EPC, according to the case law of the Boards of Appeal, it may be used to interpret the EPC''.
''See also "European Patent Organisation" box below.''
== External links ==
* [http://www.epo.org/patents/law/legal-texts/epc.html The European Patent Convention]
* [http://www.epo.org/patents/law/legal-texts.html Legal texts from the European Patent Office (EPO)], including the text of the European Patent Convention.
{{European Patent Organisation}}
[[Category:European patent law]]
[[Category:European Patent Organisation]]
[[Category:Intellectual property treaties]]
[[Category:Business law]]
[[Category:International trade]]
[[Category:1973 in law]]
[[de:Europäisches Patentübereinkommen]]
[[es:Convenio sobre la Patente Europea]]
[[fr:Convention sur le brevet européen]]
[[nl:Europees Octrooiverdrag]]
[[ja:欧州特許条約]]
[[pl:Konwencja o udzielaniu patentów europejskich]]