Rights:
Under the European Patent Convention, the grant of a Patent confers to the owner the following rights:
Term of Protection: 20 years from the date of filing of the application.
Contracting States have the right to extend the term of a European Patent, or to grant corresponding protection which follows immediately on expiry of the term of the patent, under the same conditions as those applying to national patents in order to:
- Take account of a state of war or similar emergency conditions affecting that State, or
- If the subject-matter of the European patent is a product or a process for manufacturing a product or a use of a product which has to undergo an administrative authorization procedure required by law before it can be put on the market in that State.
Geographical scope of protection: A European patent application may be licensed in whole or in part for the whole or part of the territories of the designated Contracting States.
Rights conferred: A European Patent shall confer on its proprietor the same rights as would be conferred by a national patent granted in that State, from the date on which the mention of its grant is published in the European Patent Bulletin, and in each Contracting State in respect of which it is granted.
If the subject-matter of the European patent is a process, the protection conferred by the patent shall extend to the products directly obtained by such process.
Any infringement of a European patent shall be dealt with by national law
Do I have to translate my patent application? The European Patent Office has three official languages: English, French and German.
If the European patent as granted, amended or limited by the European Patent Office, is not drawn up in one of the official languages of any Contracting State, it may prescribe that the proprietor of the patent shall supply to its central industrial property office a translation of the patent in the official language required by the State (if prescribed), or in any of its official languages at his choice.
Period for supplying the translation: three months after the date on which the mention of the grant maintenance in amended form or limitation of the European patent is published in the European Patent Bulletin. (Unless the State concerned prescribes a longer period).
Cost of the proceeding: any Contracting State which has adopted the aforementioned (or similar) provisions, may prescribe that the proprietor of the patent must pay all or part of the costs of publication of such translation within a period laid down by that State.
In the event of failure to observe those provisions, the European patent shall be deemed to be void ab initio in that State.
♦ Void ab initio: to be considered invalid from the outset.
Rights conferred by a European Patent Application:
Which are the rights conferred by a European patent application after publication?
Under the EPC, the European patent application shall provisionally confer the same rights as would be conferred by a national patent granted in that State in the Contracting States designated in the application.
Any Contracting State may prescribe that a European patent application shall not confer such protection. However, the protection attached to the publication of the European patent application may not be less than that which the laws of the State concerned attach to the compulsory publication of unexamined national patent applications; and in any event, each State shall ensure at least than, from the date of publication of a European patent application, the applicant can claim compensation reasonable in the circumstances from any person who has used the invention in that State in circumstances where that person would be liable under national law for infringement of a national patent.
If the language of the proceedings is not the official language of the Contracting State, the latter may prescribe that the aforementioned provisional protection shall not be effective until a translation has been made available to the public in the manner prescribed by national law or has been communicated to the person using the invention in the said State.
If the European patent application has been withdrawn, deemed to be withdrawn or finally refused, it shall be deemed never to have had effects. The same shall apply in respect of the effects of the European patent application in a Contracting State the designation of which is withdrawn or deemed to be withdrawn.
How does revocation or limitation of the European patent application and the resulting European patent affects the rights conferred by them?
If the European patent has been revoked or limited in opposition, limitation or revocation proceedings, the European patent application and the resulting European patent shall be deemed not to have had the effect specified from the outset.
How is the extent of protection determined?
The extent of protection conferred by a European patent or a European patent application shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims.
For the period from the patent application to the grant of the European patent, the extent of the protection conferred by the European patent application shall be determined by the claims contained in the application as published. The European patent as granted or as amended in opposition, limitation or revocation proceedings shall determine retroactively the protection conferred by the application, in so far as such protection is not thereby extended.
Authentic text of a European patent application:
In any proceedings before the EPO and in any Contracting State, the authentic text shall be the text of the European patent application or the European patent.
However, if the European patent application has been filed in a language which is not an official language of the European Patent Office, the authentic text shall be the application as filed within the meaning of this Convention.
If the European patent application or the European patent in the language of the proceedings confer a narrower protection than that conferred by the language of the translation, any Contracting State may provide that a translation into one of its official languages shall in that State be regarded as authentic, except for revocation proceedings.
If a Contracting State adopts such a provision, it (i) shall allow the applicant for or proprietor of the patent to file a corrected translation of the European patent application or European patent; and (ii) it may prescribe that any person who, in that State, in good faith has used or has made effective and serious preparations for using an invention the use of which would not constitute infringement of the application or patent in the original translation, may, after the corrected translation takes effect, continue such use in the course of his business or for the needs thereof without payment.
Transference of Rights:
The European Patent as an object of property:
A European patent application may be transferred or give rise to rights for one or more of the designated Contracting States. It can be:
- A Transference, which is to be made through an Assignation. It shall be made in writing and shall require the signature of the parties to the contract; or
- A Contractual License, one of the ways to give rise to rights regarding the application without transferring its ownership:
Assignation and Contractual Licensing under the EPC: main differences. Taken from: Harris, Gordon; Carter, Alisa. The basics of patent law – assignment and licensing. (Online resource). April 19th, 2017 (Consulted on August 2nd, 2017).
The European Patent Application as an object of property:
The European Patent Application as an object of property shall, in each designated Contracting State and with effect for such State, be subject to the law applicable in that State to national patent applications.
