European Patent Application

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A European patent application is a patent application under the provisions of the European Patent Convention ("EPC"). It can lead to a patent for a large number of European countries selected by the applicant . In jargon it is sometimes just called an "EP application" or, if it emerged from a PCT application, "Euro-PCT application".

Legal basis

The legal basis in the narrower sense for a European patent application is the European Patent Convention , which is administered by the European Patent Organization .

Since an EP application is also essentially based on the fact that it generates effective patents in selectable European countries, the interfaces created in these countries for patents resulting from EP applications are to be regarded as a legal basis in the broader sense. In federal German law, this concerns Article II of the Law on International Patent Conventions (IntPatÜG). With regard to the EU patent that can be generated from an EP application, EU regulation 1257/2012 is also relevant.

Demarcation

A European patent application must not be confused with the following legal positions:

  • A patent application is not yet a patent . A patent can only be granted if a patent application meets the formal and content requirements for patentability. The effects of a patent application against third parties are different and usually significantly weaker than those of a patent. In particular, an omission can only be requested from a patent, not from a patent application.
  • National patent applications, e.g. B. a German patent application ("DE-registration"), are patent applications that are processed for a single country under the laws of that country and take effect.
  • An international patent application ("PCT application") is a uniform application procedure that is initially carried out uniformly for many countries, but ultimately breaks down into one or more national or regional patent applications, which then have to be pursued individually. An EP application can also result from a PCT application.

properties

  • A European patent application leads to a uniform filing and examination procedure, which the applicant can operate for a variety of EPC member states of his choice and from which the applicant can generate patents for a number of countries in Europe and the surrounding area of ​​his choice .
  • Eligible countries: The European Patent Organization EPO is not an institution of the European Union EU, but an intergovernmental organization independent of ("alongside") the EU. The quantities of the member countries of the EPO on the one hand and the EU on the other are different and incompatible. The EPO, which is responsible for EP applications, has more member countries than the EU, including Turkey, particularly in eastern and south-eastern Europe. Switzerland is also a member of the EPO. There are various mechanisms by which countries can be assigned a patent from an EP application, see under country selection .
  • Responsible office: The European Patent Office ("EPO") with its headquarters in Munich and branches in Berlin, Rijswijk and Vienna is responsible for processing an EP application in terms of form and content .
  • Language and translations: The EP application can be filed in many languages. However, the examination procedure must be conducted in one of the official languages ​​German, French or English. Possibly. a translation must therefore be submitted after registration. When a patent is granted, the allowable claims must be translated into the two other official languages ​​of the EPO in which the grant procedure was not conducted.
  • A European patent application is an intellectual property and as such is an asset. It has one or more owners, usually called the “applicant”, and it can be transferred to one or more other applicants.
  • The applicant cannot require others to cease and desist from an EP application. Depending on the case, however, after the patent has been granted, he may be entitled to certain compensation claims for the use of the patented teaching while the application is pending.

Procedure

A European patent application must be submitted to the European Patent Office in writing or, equivalent, electronically and in other appropriate form. This can be done as a direct new application ("EP application") or as a continuation of a PCT application ("Euro-PCT application").

The right of priority also applies to EP applications. You can take and give priorities.

The search request must be for an EP application will be provided simultaneously with their submission. In return, the applicant receives a search result , the so-called "European search report", which also contains an examiner's opinion on the patentability of what is claimed. The request for examination for the substantive examination of the application can be submitted for an EP application immediately upon filing or - depending on the process - a certain time afterwards, in particular in response to the search result.

In response to the request for examination, the examination procedure in the narrower sense begins with a written exchange between the Office and the applicant on the formulation of the patent applied for and a discussion of the patentability of the claimed invention, which ends sooner or later with the decision to grant the patent or a decision to reject the patent. In particular, the criteria of clarity , disclosure of changes to the application, uniformity , novelty and inventive step are discussed. An oral hearing can also take place during the examination process.

If all of the objections can be resolved, the EPO will notify the applicant of his willingness to grant and the documents on which it is based and will request the applicant to pay the fee and to file translations of the claims into the two official languages ​​in which the examination procedure was not conducted, on. If the translations and fees are received on time, a formal decision will be made to grant the patent.

In this final stage, the applicant must also take any measures necessary for validation at the relevant national patent offices.

Others ("third parties") can use so-called "third party submissions" to convey their opinion on the quality of the EP application to the Office. However , you can only file a formal objection after the patent has been granted.

Country selection

There are currently three mechanisms, and possibly four in the future, for selecting countries in which a patent is to arise from the European patent application. In spite of the large number of options available from an EP application, only a few European countries have regularly been granted a patent, sometimes only two or three, but then often the larger ones, e.g. B. Germany, France, Great Britain.

The choices are:

Member states of the EPC

A priori, when the patent is granted, the EP application is divided into a bundle of national patents in the member states of the EPC that can be selected by the applicant. These countries have each set their own, individual regulations which formalities have to be fulfilled so that a patent is actually created in them from the EP application. The requirements can be uncomplicated and simple (for example, only payment of the annual fees due for Germany ) or complex with national representatives, translation requirements and fee obligations.

Extension states

By paying fees during the examination procedure, the validity of the pending application and the possibly emerging patent can be extended to the extension states Bosnia-Herzegovina and Montenegro, which are not member states of the EPC.

Validation states

By paying a fee during the examination process, the possibly emerging patent can be validated in the validation states of Algeria, Tunisia, Moldova and Cambodia, which are not member states of the EPC.

EU countries

If one day the rules for the EU patent come into force, an EP application will also provide the option of "opting in" into an EU patent, i.e. EU-wide patent effect. The applicant can determine that he would like to receive a patent that is uniformly valid throughout the European Union, ie a so-called "EU patent", from the EP application. This opting in must take place in the grant phase of the EP application. There are then translation requirements for the patent claims and special annual fee payment obligations. In order to avoid double protection from an EU patent and a national patent validated for an EU state from the EP application, the EU regulation 1257/2012 in Art. 4 (2) also requires the member states to opt into an EU patent that they make legal provisions to the effect that a patent validated conventionally from an EP application as described above becomes invalid in their respective country if an EP application is opted into an EU patent.

costs

Official costs must be paid for an EP application. If a representative is hired, such as a patent attorney , his costs must also be paid.

The official costs of an EP application initially include the filing fee and the search fee (together approx. € 1,400 - as of April 2019), possibly a fee if it is a divisional application, then the designation fee and the examination fee (together approx. € 2,200 - as of April 2019) and finally the issuing fee (€ 925 - as of April 2019). Volume-dependent fees, the amount of which cannot be small, may also be added. From the beginning of the third year, annual fees must also be paid (€ 470 for the third year, then increasing - as of April 2018).

The costs of the possibly commissioned representative depend on the agreements between the client and the representative.

Web services

Via the " Espacenet " service maintained by the EPO , an EP application can also be accessed in the context of its patent family and other publications from its publication. A computer translation tool for published patent applications is also available here.

All published file contents for published EP applications can be called up via the EPO register as soon as they are received by the Office.

The various relevant legal sources for an EP application (EPC, Implementing Regulations, Fee Regulations, Examination Guidelines, ...) are available on the EPO website. There you will also find a description of the requirements in the individual countries after the EP application has been granted.

Empirical statements

  • The official fees for an EP application are comparatively high. Translation costs are only incurred to a lesser extent.
  • To speed up the examination process, the EPO participates in the so-called " Patent Prosecution Highway " program.
  • The disclosure requirement for the admissibility of amendments to EP applications during the examination procedure is strictly applied.

Web links

Individual evidence

  1. ↑ a b Regulation (EU) No. 1257/2012 (PDF) on the EU patent
  2. ^ EPO Espacenet Service
  3. ^ The EPO register
  4. ↑ Access to legal sources for EP applications