A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it. It may also be filed either by joint applicants or by two or more applicants designating different Contracting States.
The right to a European patent shall belong to the inventor or his successor in title.
The topics of concurring inventions and employment relationships are addressed by the European Patent Convention as follows. The topic of “State-funded inventions” is not directly addressed under the Convention, which means that it depends merely on the law applicable under each State.
- Concurring inventions:
If two or more persons have made an invention independently of each other, the right to a European patent therefor shall belong to the person whose European patent application has the earliest date of filing, provided that this first application has been published.
- Employment relationships:
If the inventor is an employee, the right to a European Patent shall be determined in accordance with the law of the State in which the employee is mainly employed; if the State in which the employee is mainly employed cannot be determined, the law to be applied shall be that of the State in which the employer has the place of business to which the employee is attached.
In proceedings before the European Patent Office, the application shall be deemed to be entitled to exercise the right to a European patent.
What happens if a patent application is filed by a person who is not entitled to it?
If by a final decision it is adjudged that a person other than the applicant is entitled to the grant of the European patent, that person may, in accordance with the Implementing Regulations:
- Prosecute the European patent application as his own application in place of the applicant;
- File a new European patent application in respect of the same invention; or
- Request that the European patent application be refused.
Towards the inventor’s paternity right… The EPC states that, in any case, the inventor shall have the right, vis-à-vis the applicant for or proprietor of a European patent, to be mentioned as such before the European Patent Office.
