The European Patent Convention essentially concerns a unified procedure for the filing, examination and granting of a patent. The Convention allows any person or judicial entity to file an application for a European patent.
The present member countries of the European Patent Convention are: Albania, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Republic of Macedonia, Republic of San Marino, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom. The following States (extension States) can also be requested through a European Patent application: Bosnia-Herzegovina, Montenegro and Morocco.
The patent application, after its publication, confers the same rights as the granted patent itself, or at least the same rights which the published national application would confer in a contracting State. The patent application may be filed at the European Patent Office in Munich, or at the Department in The Hague or at a branch agency of the Department.
The Filing Section, which is one of the bodies of the European Patent Office, carries out a formal examination of the application. The appropriate Division performs a search of prior art and draws up a European Search Report, which includes an opinion on the patentability of the invention, in terms of novelty, inventive activity and industrial application. By comparing the Search Report with the content of the patent application in question, all the necessary information is obtained for deciding whether or not to proceed with the application and, if it is decided to proceed, for deciding how to proceed. In this case, the Search Report indicates whether it is necessary or not to amend the text of the patent application. It must be remembered that the indications given in the Search Report must in any case be checked carefully, since the person who compiled the report may not fully have understood the various features of the invention disclosed in the patent application.
The examination procedure includes a complete examination for patentability, which is performed by the competent Examination Division. During the examination procedure, the field for which protection was initially requested may vary, even considerably, according to the prior art. The examination may lead to the application being turned down, or the European Patent may be granted for those countries designated by the applicant when the application is filed. It is possible to appeal against a rejection.
It is possible to file one or more divisional patent applications to cover contents originally present in the text as filed but excluded or limited during the examination procedure, also due to a lack of inventive unity found by the European Examiner.
Once it has been granted, a European Patent, in order to be kept valid in the designated countries, must conform to the laws of each individual country. In many countries, at the moment of writing, it is necessary to file the translation of the claims and/or text in the official language of that country; if this is not done within the prescribed time limits, the patent application is considered to be abandoned in that particular country.
Within 9 months of the publication date of the mention of the granting of the patent, third parties may present an opposition to the definitive issue of the patent. The opposition is examined by the competent Opposition Division and, at the end of this examination, the patent may be revoked or confirmed (even in a modified form). It is possible to appeal to the Appeals Board against the decision of the Opposition Division. With the last revision, another possibility was added, that of appealing to a third level managed by the Enlarged Board of Appeal, but this concerns only juridical or procedural aspects. The decisions of the Filing Section, Examination Division and Opposition Division, as said, are subject to appeal to the Board of Appeals, which issues decisions which cannot be appealed against.
It is also possible for the proprietor to ask the European Patent Office to limit his European Patent as granted or as maintained in a modified form (following an opposition by a third party).
In this case the European Patent Office examines the request for limitation and, when it deems it acceptable, the European Patent is re-published as limited and is effective ab initio in all the States designated by the European Patent in its limited form. Each State may request that the translation of the limited text be filed at its own National Patent Office. It is also possible for a proprietor of a European Patent to request its revocation, but this request is subject to a formal assessment and the subsequent approval by the European Patent Office. In Italy, where counterfeiting is concerned, it is the nationalized text that prevails, whereas where validity is concerned it is the original text as granted that prevails.
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