All new products or procedures in any technical sector are patentable if they possess novelty, inventiveness and industrial applicability. Methods for surgical or therapeutic treatment, diagnostic methods applied to the human or animal body and new plant or animal varieties, as well as essentially biological procedures for the production of animals or plants, are not patentable. A specific EU-wide plant variety right is available for new plant varieties.
Application for a European Patent and Prior National Patent
Application for a European patent can be filed regardless of the existence of a prior national patent.
Absolute novelty is a requirement; any disclosure of the invention before the patent application’s filing date or before the priority date can make the patent null.
On the filing date of the patent application, the invention must include what is known as an inventive step: a step that an expert in the relative field, knowledgeable of the state of the art in that field, would recognize as non-obvious.
The invention must susceptible of industrial application. Such application may be in any field of industry, including the agricultural sector.
It is possible to claim the priority of the first, prior patent application filed in one of the member states of the Paris Convention or of the World Trade Organisation (WTO) within 12 months running from the filing date of that first application. More than one priority is permitted. A first application for a European patent can be the basis for a priority claim when subsequent applications are filed for the same invention in other states party to the Paris Convention.
Who May Apply for a European Patent
Any natural or legal person of any nationality (inventor or assignee) may apply for a European patent.
Applicants may only be represented professionally by European patent attorneys or attorneys-at-law.
Where to File the Application
French, English and German are the official languages to be used before the European Patent Office.
Member States of the European Patent Convention
Albania, Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, North Macedonia, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and the United Kingdom are members of the European Convention.
Additional States that may be designated in a European Patent Application
Though they are not members of the European Convention, the following countries may be designated in a European patent application: Bosnia-Herzegovina, Cambodia, Moldova, Montenegro, Morocco, Tunisia.
Designation of States
The designation of states in which patent protection is sought must be indicated in the patent application.
Rights Conferred by the Application
After the European application is published (18 months after filing date or priority date), the applicant can enjoy provisional protection in the designated states if a translation of the claims is filed. Such provisional protection is in accordance with national law. Reasonable compensation can be claimed in any case by the applicant for any activities of third parties infringing his rights, provided that the patent is later granted.
Search, Examination and Grant of a European Patent
The EPO carries out a priority search on the invention which is made available to the applicant and is one of the elements taken into consideration for the next phase of examination. The EPO can grant or deny the patent. Its decision applies in every member state. Denials can be appealed at the Board of Appeal of the EPO.
Post-grant oppositions may be filed by third parties and are discussed before the opposition divisions of the EPO. At the conclusion of the procedure, the Office may maintain the patent as granted, modify its scope or revoke it. Such decision may be appealed before the Board of Appeal of the EPO.
European Patent Validation in Designated States
After the grant of the patent, the owner must obtain the European Patent’s validation in each designated state, at national level. This can require translations into the national languages. After validation, the European patent is governed in each state by national laws.
Starting from the third year, a fee is required for maintenance which can be paid in advance to the EPO. After the grant of the patent, national maintenance fees must be paid in each state of validation.
Duration of the Patent
Patents have a duration of 20 years following filing date.
Licensing and assignment
Licensing and assignment of European patents is allowed. European patents can also be the object of rights of security.
A granted European patent or a European patent application give the owner the right to request customs protection, involving the detention of counterfeit products at customs.
Applicable International Agreements
The Paris Convention, the European Patent Convention, the Patent Cooperation Treaty (PCT) and the Budapest Treaty.