1. INTRODUCTION
MEANING
As per Hasbury law of England , Patents is the monopoly right for invention by the inventor. So, we can say “Patent is monopoly right by the Patent office conferred upon the inventor to exploit his invention subject to provision of Patent law for the limited time and during this time, inventor has exclusive right to exclude other to commercially exploit his invention”
As per WIPO
“A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.”
Patents are often described either as property or a monopoly — both are only partially correct and potentially misleading. Patents are defined by federal statute as a private regulatory right. A patent looks like property because it can be bought and sold, its perimeter is defined by its claims (like the boundaries in a deed for land) and the patent owner has the power to exclude others from manufacturing, distributing, selling or merely using an invention. Because patents can be bought and sold — and used as collateral or monetized — they also can be viewed as financial instruments, i.e., as options to litigate.
Despite superficial similarities, patents do not behave like real property. They can be licensed over and over to different parties, and the boundaries can be very difficult and costly to determine. Patents often overlap; each patent is defined by its terms, and ambiguous words must be turned into fences. Identification of real property is visible and intuitive — lots abut and do not overlap.
Ordinary people understand houses and the value of living in one. If property boundary conflicts arise, they can be dealt with predictably by looking at deeds and hiring surveyors if needed. Understanding a patent requires both technical and legal expertise — and deep knowledge of the field, including the extent of prior art. And even with expertise, the boundaries are not clear. In principle, going to court should be an effective, albeit expensive, way of gaining clarity. Yet when judges construe claims, they are reversed 40% of the time by the appellate court. As one former USPTO examiner recently noted, “if you give the same application to 10 different examiners, you’ll get 10 different results.”
Unlike a deed for property, a patent is only a right to exclude; it does not grant the owner a right to exploit the technology — or even to use it. Using it may be against the law, or the technology may be controlled by an underlying or overlapping patent that belongs to someone else. But a patent is not necessarily a monopoly. Most patents are worthless, and other patents are narrow enough that, if known, they can easily be designed around.
Once again, there is great variation from industry to industry. A molecule can be managed as property much more readily than an abstract idea. A drug that is the only known treatment for a particular disease is in effect a monopoly. While patents are often referred to as “intellectual property” along with copyright, trademarks and trade secrets, this is misleading. There are critical differences. Unlike copyrights, patents do not allow for independent creation or fair use. The transaction costs, including legal overhead, in all aspects of the patent are exceptionally high, which is especially problematic for small companies.
HISTORY AND RATIONAL OF PATENT LAW
Patent systems have a long history. They developed as a way to promote innovation, originally either by encouraging the importation of new technologies into a country or by making new inventions. Instead of keeping the invention a secret, countries learned that one effective way of getting inventors to publicly disclose their invention was to offer them limited monopoly rights in exchange for doing so. One way these patent rights were limited was in time, e.g. 7, 14 or 20 years. After this period of time the monopoly rights were lifted and everybody could use the invention freely.
PERIOD DEVELOPMENT
Venetian Patent Statute, issued by the Senate of Venice in 1474
It was one of the earliest statutory patent systems in the world. The period of protection was 10 years. These were mostly in the field of glass making. As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries
Patent Act of the U.S. Congress was passed on April 10, 1790
U.S. patents granted, 1790–2010.
An Act to promote the progress of useful Arts". The first patent was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate) .
18th Century
Towards the end of the 18th century, and influenced by the philosophy of John Locke, the granting of patents began to be viewed as a form of intellectual property right, rather than simply the obtaining of economic privilege.
A negative aspect of the patent law also emerged in this period – the abuse of patent privilege to monopolise the market and prevent improvement from other inventors.
A notable example of this was the behaviour of Boulton & Watt in hounding their competitors such as Richard Trevithick through the courts, and preventing their improvements to the steam engine from being realised until their patent expired.
Paris Convention, 1883
(Signed on 20.03.1883 by representative of 11 countries and came in force on 07.03.1884) Article 4
A to I. Patents, Utility Models, Industrial Designs,
Marks, Inventors’ Certificates: Right of Priority
G. Patents: Division of the Application
Provides
Any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.
Right of Priority
Applicant
files first application for protection
Date of
Priority
Any Contracting Country
Within 12 months for Patent & Utility
Within 06 months for ID and Marks
Apply for protection in any contracting country
Also provides “No country of the Union may refuse a priority or a patent application on the ground that the applicant claims multiple priorities, even if they originate in different countries, or on the ground that an application claiming one or more priorities contains one or more elements that were not included in the application or applications whose priority is claimed, provided that, in both cases, there is unity of invention within the meaning of the law of the country.
With respect to the elements not included in the application or applications whose priority is claimed, the filing of the subsequent application shall give rise to a right of priority under ordinary conditions.”
Article 4bis
Patents: Independence of Patents Obtained for the Same Invention in Different Countries
Provides that,
“ Patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not.”
TRIPS, 1995
(Article 27 – 34) Article 27(1) Provides: Patentable Subject Matter
Place of origin;
Patent Rights shall be
Available and enjoyable Field of Invention;
Without any discrimination
Whether Locally Manufactured;
or imported
Article 28 : Rights Conferred
1. A patent shall confer on its owner the following exclusive rights:
(a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing (6) for these purposes that product;
(b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, Hon’ble Supreme Court of India held “The object of Patent law is not only to reward and recognized the invention but it act as the tool for promotion of new invention which ultimately result in development of Economy of the Country”
If the invention was not a success, the applicant would abandon the patent application, or stop paying the annual fees to the patent office to keep the patent alive.
So, in theory, the public learned quickly about a new invention when the patent application describing the invention was published, and eventually got free access to use it. In the meantime, the patent holder profited from the patent by selling the new invention at a higher price than would have been the case without a patent since the patent monopoly prevents competition. In an ideal case, both parties benefit from this patent bargain.
2. PATENTABILITY STANDARD
TRIPS
TRIPS is one of the most contentious agreements of the WTO which has been debated world-wide in the developed and developing countries and also in important international institutions.
“TRIPS provides for patent protection for any inventions whether products or processes in all fields of technology provided that they are new, involve an inventive step and are capable of industrial application.”
Clause(ja) in section 2 which defines "inventive step" as a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art. Clause (l) in section 2 which defines "new invention" as any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art.
Thus from the above, it is clear that under the Indian Patent Law, an invention in order to be patented should fulfill the following three conditions, these are:
1) INVENTION MUST BE NEW
Novelty is a fundamental requirement and an undisputed condition of patentability. An invention will not be novel if it has been disclosed in the public through any type of publication anywhere in the world. For example, a lot of hue and cry has been raised in India when the patent was granted to turmeric products in United States on the ground that it is not new and it is already published in Indian Texts and use of Turmeric preparations has been made in India since times immemorial. Further .the Newness of an invention depends upon the state of existing knowledge as well as the similar inventions in that particular field.
Prior use of invention before filing an application for patent can also destroy novelty. Oral description of the invention in some seminar/conference can spoil novelty if the patent application is not filed within a stipulated time period, which is six months in India.
2) USEFUL
An invention even though it is new as well as non obvious to a person skilled in the art to which it relates cannot be granted a patent unless and until it is of some use to the Mankind .Therefore, a useless invention though may be new and non obvious will not be granted the status of a patent.
3) NON OBVIOUS TO THE PERSON SKILLED IN THE ART TO WHICH THE INVENTION RELATES TO:
The Invention by any person in any field of art shall be of such a nature that a person, who is also skilled in the art to which this invention relates, shall not be able to come to that invention unless he is acquiring some special mental skills.
The three main features of the Agreement are:
• STANDARDS: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection. The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention. Secondly, the TRIPS Agreement adds a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
• ENFORCEMENT: The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
• DISPUTE SETTLEMENT: The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
In addition the Agreement provides for certain basic principles, such as national and most-favoured-nation treatment, and some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement. The obligations under the Agreement will apply equally to all Member countries, but developing countries will have a longer period to phase them in. Special transition arrangements operate in the situation where a developing country does not presently provide product patent protection in the area of pharmaceuticals.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability. It is also required that patents be available and patent rights enjoyable without discrimination as to the place of invention and whether products are imported or locally produced (Article 27.1).
There are three permissible exceptions to the basic rule on patentability. One is for inventions contrary to order public or morality; this explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment. The use of this exception is subject to the condition that the commercial exploitation of the invention must also be prevented and this prevention must be necessary for the protection of order public or morality (Article 27.2). The second exception is that Members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).
The third is that Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. Moreover, the whole provision is subject to review four years after entry into force of the Agreement (Article 27.3(b)).
The exclusive rights that must be conferred by a product patent are the ones of making, using, offering for sale, selling, and importing for these purposes. Process patent protection must give rights not only over use of the process but also over products obtained directly by the process. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts (Article 28).
Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties (Article 30).
The term of protection available shall not end before the expiration of a period of 20 years counted from the filing date (Article 33). Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application (Article 29.1).
If the subject-matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process, where certain conditions indicating a likelihood that the protected process was used are met (Article 34).
INTERNATIONAL FILING OF PATENT APPLICATION
Article 4 : Priority Right
Application
File first Application
Priority
Date One of the contracting state
Within 12 months for patent & utility Model
Within 6 months for industrial Design & mark
Apply for protection in another contracting state
Patent Cooperation Treaty, 1970
Unified procedure for filing Patent application via Single International application in contracting State
• Signed on : 19.06.1970
• Represented by : 36 Countries
• Effect from : 24.01.1971
• Member : 148
The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection internationally for their inventions, helps patent Offices with their patent granting decisions, and facilitates public access to a wealth of technical information relating to those inventions. By filing one international patent application under the PCT, applicants can simultaneously seek protection for an invention in a very large number of countries.
The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.
Patents are territorially limited. In order to protect your invention in multiple countries you have a few options:
(a) Direct or Paris route: you can directly file separate patent applications at the same time in all of the countries in which you would like to protect your invention (for some countries, regional patents may be available) or, having filed in a Paris Convention country (one of the Member States of the Paris Convention for the Protection of Industrial Property), then file separate patent applications in other Paris Convention countries within 12 months from the filing date of that first patent application, giving you the benefit in all those countries of claiming the filing date of the first application (see Question 11);
(b) PCT route: you can file an application under the PCT, directly or within the 12-month period provided for by the Paris Convention from the filing date of a first application, which is valid in all Contracting States of the PCT and, therefore, simpler, easier and more cost-effective than both, direct or Paris route filings.
COMPARISON OF PARIS AND PCT ROUTE
The PCT is used by the world’s major corporations, research institutions, and universities when they seek international patent protection. It is also used by small and medium sized enterprises (SMEs) and individual inventors. The PCT Newsletter contains a yearly list of the largest PCT filers.
PCT STATISTICS:
In 2014, Among the foreign applicants who entered PCT national phase in India, USA filed the highest number of patent applications (8534), followed by Japan (4517) and Germany (3065).
USA is the leading country of origin for PCT applications, both in India and at global level.
3. PATENTABILITY CRITERIA IN UNITED STATES
INTRODUCTION
In the United States, in order to meet the litmus test of patentability, an idea must satisfy a three-pronged test of novelty, non-obviousness, and utility. Also, the invention must not have been in public use or sale in the US for more than one year prior to date of filing the patent application. The US patent statute states that an invention is deemed obvious, “…if the difference between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art to which the subject matter pertains.” The “utility” requirement is probably the easiest criteria to meet as virtually any usefulness is considered to meet the “utility” requirement.
The Patent Law in United States were very liberal in the beginning like the Indian Patent Law on the patentability condition of Non Obviousness ,but now the Patent Law in the United States is tightening up after the coming up of the two landmark cases of KSR vs. Teleflex and Pfizer vs. Apotex.
The KSR v. Teleflex case involved the usage of electronic sensor based adjustable gas pedals. Teleflex accused KSR International of using a gas pedal technology claimed in one of Teleflex’s patents. KSR counter argued that Teleflex should not have been granted a patent for that pedal in the first place, as the combination of an electronic sensor and gas pedal technology was obvious based on prior art.
The US Supreme Court reversing the decisions of a lower court held that the sensor based gas technology was obvious from the teachings of other patents and invalidated Teleflex’s patent. In his opinion, Justice Anthony Kennedy wrote for the Court, “The results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise, patents might stifle rather than promote the progress of useful arts.”
Section 101 of the U.S. Patent Act sets forth the general requirements for patent protection in a single sentence: ‘Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent, subject to the conditions and requirements of this title’
Unfortunately, the actual test for patentability is a bit more complicated than this sentence suggests. Under U.S. patent law, an invention is patentable only if it meets the following four requirements, which are discussed in more detail below:
• The invention must be statutory
• The invention must be new
• The invention must be useful
• The invention must be non-obvious
STATUTORY SUBJECT MATTER REQUIREMENT
Section 101 of the Patent Act states that processes, machines, articles of manufacture, and compositions of matter are patentable. At first blush, this wording appears to cover every conceivable type of invention. To a large extent, this is true. Under this statute, the United States has one of the broadest standards for what constitutes patentable subject matter in the entire world. Most inventors do not have to worry about whether their inventions are non-statutory. However, there are certain inventions that do not fall within Section 101, and therefore are not the right "type" of invention to qualify for patent protection. These inventions are considered to fail the "statutory subject matter" requirement for patent protection, and cannot receive a valid US patent even if they meet the other requirements for patentability (i.e., even if the invention is new, useful, and non-obvious) .
We know that the statute identifies four types of inventions that are patentable, namely processes, machines, articles of manufacture, and compositions of matter. If an invention does not fall within one of these four categories, the invention is not patentable. For example, data structures that are not claimed in combination with a computer or some type of computer-readable media are clearly outside of these four categories. So is nonfunctional descriptive material, such as music, literary works, and compilations or arrangements of data. It is also clear that electromagnetic waves or signals do not fit into any of these categories, and therefore are not patentable. Finally, a claim to "software" that is not tied to a process or a physical machine (such as a computer or mobile device) would also fall outside the four statutory categories and therefore would not be patentable. In order to avoid this problem, most experienced patent attorneys will take care never to claim software in the abstract, but will only claim software in the context of a computing machine or a process.
In addition to falling within one of these four statutory classes, an invention must also avoid a judicially created "exception" to patentable subject matter if it is to be considered a patentable type of invention. Recent case law has identified three different exceptions, namely abstract ideas, laws of nature, and natural phenomenon. The Supreme Court in Alice Corp. v. CLS Bank International analyzed these three exceptions in some detail. The "abstract idea" exception to patentable subject matter is particularly important for patents relating to software, mobile-device apps, and the Internet. Many observers are of the opinion that a large precentage of software-related inventions are no longer patentable after the Supreme Court's explanation of the abstract idea exception.
NOVELTY (NEWNESS) REQUIREMENT
In order for an invention to be patentable, the invention must be considered to be new or novel. This novelty requirement states that an invention cannot be patented if certain public disclosures of the invention have been made. The statute that explains when a public disclosure has been made (35 U.S.C. Section 102) is complicated and often requires a detailed analysis of the facts and the law. The most important rule, however, is that an invention will not normally be patentable if:
• the invention was known to the public before the applicant filed for patent protection;
• the invention was described in a printed publication before the applicant filed for patent protection; or
• the invention was described in a published patent application or issued patent that was filed before the applicant filed for patent protection.
There is an exception to these requirements for disclosures made by the inventor less than one year before the patent application was filed. This means that there is a one year period after the first public disclosure or offer for sale of an invention by an inventor during which a patent application must be filed. This "statutory bar" is unforgiving, which means that an inventor who does not file for patent protection on her new invention within this one year grace period will lose all right to obtain patent protection on the invention. In fact, it is possible that this one-year clock may start "ticking" by something as innocuous as showing the invention to friends without any obligation of confidentiality.
Although the United States grants the one year grace period described above, most other countries do not grant such a period. Therefore, it is almost always preferable to file a patent application before any public disclosure of the invention. Most patent attorneys will try diligently to file a patent application prior to any public release or announcement in order to allow international patent filings.
The statute that describes this novelty requirement under U.S. law was significantly revised by the America Invents Act. Patent applications that were filed on or before March 16, 2013 fall under the earlier version of the statue. Under this earlier version, public disclosures made by another less than one year before the patent application was filed may not bar an application if the disclosure was made after the applicant's "invention" date.
USEFUL REQUIREMENT
The patent law specifies that the subject matter must be "useful." This means that the invention must have a useful purpose. In most cases, the usefulness requirement is easily met in the context of computer and electronic technologies. The requirement is more important when attempting to patent a pharmaceutical or chemical compound, as it is necessary to specify a practical or specific utility for the new compound.
NON-OBVIOUSNESS REQUIREMENT
If an invention is not exactly the same as prior products or processes (which are referred to as the "prior art"), then it is considered novel. However, in order for an invention to be patentable, the patent statute also requires that the invention be a non-obvious improvement over the prior art (35 U.S.C. Section 103). This determination is made by deciding whether the invention sought to be patented would have been obvious "to a person having ordinary skill in the art to which the claimed invention pertains." In other words, the invention is compared to the prior art and a determination is made whether the differences in the new invention would have been obvious to a person having ordinary skill in the type of technology used in the invention. The statute requires that the invention be obvious at a time before the application was filed.
Thus, from the above discussion the concept of the patentability criteria for any invention in any field of art is clear as far as it relates to India as well as in the United States.
4. PATENABILITY CRITERIA IN UK
CRITERIA
The European Patent Convention (EPC) puts forth four Criteria of Patentability. An invention is patentable if,
(i) it is novel (Article 54 EPC),
(ii) involves an inventive step (Article 56 EPC),
(iii) is capable of industrial application (Article 57 EPC), and
(iv) is not excluded by Article 52(2) and (3) EPC.
NOVELTY
Novelty in EPC is slightly stricter than US law. According to EPC the invention must not be found at a previous date in any matter, whether a product, a process, the information have not been made available to the public whether in European country or anywhere in the world.
INVENTIVENESS
An invention must involve an inventive step in order to be patented. According to the law, a person with ordinary brain and skill in the art should not be able to derive the claims of the invention. This criterion is very similar to the US Criteria of non-obviousness.
INDUSTRIAL APPLICATION
An invention must have an industrial application in order to be patented. Section 4 states that an invention shall be taken to be capable of industrial application if it can be made or used in any kind of industry including agriculture. This criterion is similar to the US Criteria of utility.
Non exclusion by article 52(2) and (3) of EPC
These articles exclude many items from the list of patentable items. Some of them as below:
An invention is excluded if it has no technical character. The technical considerations may lie in the underlying problem solved or in the technical effects achieved.
• A method claim that does not mention any implementing technology will be rejected.
• A discovery, scientific theory or mathematical method is not patentable.
• An invention which is offensive, immoral or anti-social is not patentable.
European patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations in countries which are party to the European Patent Convention. For certain states in Eastern Europe, the Eurasian Patent Convention applies.
Patents having effect in most European states may be obtained either nationally, via national patent offices, or via a centralized patent prosecution process at the European Patent Office (EPO). The EPO is a public international organization established by the European Patent Convention. The EPO is not a European Union or a Council of Europe institution. A patent granted by the EPO does not lead to a single European patent enforceable before one single court, but rather to a bundle of essentially independent national European patents enforceable before national courts according to different national legislations and procedures. Similarly, Eurasian patents are granted by the Eurasian Patent Office and become after grant independent national Eurasian patents enforceable before national courts.
European patent law is also shaped by international agreements such as the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), the Patent Law Treaty (PLT) and the London Agreement. A characteristic of European patent law as it stands today is that European patents granted by the European Patent Office (EPO), and patents granted by national patent offices are available, and may possibly –if permitted by national law and, if so, to the extent permitted by national law – co-exist within a given jurisdiction. Utility models, referred to as "Gebrauchsmuster" in Germany and Austria, are available in some countries.
Patent applications can be filed at the relevant national patent office or at the European Patent Office. Alternatively, an international application may be filed under the Patent Cooperation Treaty (PCT) and later nationalised in the desired countries or at the EPO. However, Belgium, Cyprus, France, Greece, Ireland, Italy, Latvia, Malta, Monaco, the Netherlands, and Slovenia have "closed their national route" meaning that it is no longer possible to nationalize an international application in those countries directly and protection can only be obtained via the EPO.
A European patent is the product of a unified grant procedure before the European Patent Office (EPO) under procedures established by the European Patent Convention (EPC). A European patent is a regional, non-unitary patent. Some of the 38 EPC Contracting States require the patentee to file a full translation of the granted European patent with the national patent office of the State if the text of the European patent as granted is not in one of their official languages. If the required translation is not filed, the European patent is deemed to have no effect from the outset in that State. The London Agreement, which entered into force on May 1, 2008, significantly reduces the number of required translations in the 20 states that are party to it.
The European patent can be revoked under the laws of a Contracting State on certain grounds (specified in EPC Articles 138 and 139) with effect only in that State. A central time-limited opposition procedure and central limitation and revocation procedures before the EPO are available however. The opposition procedure allows a third party, i.e. any person except the patent proprietor, to oppose a granted European patent in an attempt to have the EPO reconsider the grant of the patent and possibly revoke or amend the patent. The opposition procedure may only be initiated within nine months of the grant of the European patent. The limitation and revocation procedures allow the patent proprietor to centrally request the limitation or revocation of his own European patent.
Unitary patents
Countries may create unitary protection with regards to patents, which means that the effect (including revocation) is equal in all countries concerned. Such unitary protection was effected (both for "national" and European patents) by Switzerland and Liechtenstein in 1980 with the Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection of 1978.
National patents
National patents are available in all European countries. In some European countries, national patents are substantively examined, while in other countries there is no provision for such examination and patents are thus granted only if formal requirements are met, while novelty and inventive step is not evaluated. It can be cheaper and tactically advantageous to apply for a few national patents rather than for a European patent at the European Patent Office.
In the United Kingdom, for example, the Patents Act 1977 and the Patents Act 2004 establish the law relating to patents including filing, examination, grant, infringement, revocation, assignment. UK law is in many ways similar to the European Patent Convention (EPC) (although the EPC deals with very few post-grant activities). National patents may be the only available patents in European states that are neither party to the European Patent Convention nor the Eurasian Patent Convention. This is the case for Andorra, Moldova and Ukraine. Montenegro and Bosnia and Herzegovina are extension states to the European Patent Convention, which means that European patents granted are deemed to take effect also in these states, if extension is correctly requested; and provided certain translation and publication requirements are met.