A European Patent can be obtained in a unitary procedure by filing one single application at the European Patent Office (EPO). It is valid in as many of the contracting states as the applicant cares to designate. A European Patent (EP) provides the same rights in the designated contracting states as a granted national patent granted in any of these states.
Phase 1
Filing the application, examination on filing and on formalities, search, publication of application and search report
EP applications may be filed either at the European Patent Office in Munich, The Hague or Berlin, or through the national patent offices in the contracting states.
Applicants may, within 12 months from the date on which a national or European patent application was filed, claim for the same invention the first filing date of this application at a subsequent national or European filing.
The application is published 18 months after the date on which the first European or national application was filed (priority date). The search report is published either with the application or later on. Applicants then have six months to decide whether or not to pursue their application by requesting substantive examination.
Phase 2
Substantive examination (grant of patent or refusal of application)
The three criteria for patentability are:
- novelty(an invention is considered new if it does not form part of the state of the art)
- inventive step (an invention is considered as involving an inventive step if it is not obvious to a skilled person having regard to the state of the art)
- industrial applicability
If an EP is granted, competence is transferred to the designated contracting states, where it is provided the same level of legal protection as a national patent. On average it takes 44 months to obtain an EP. An EP is valid for 20 years from the date on which the application was filed.
Phase 3
(in some cases) Opposition, appeal
Within nine months from the date of grant, any third party may file opposition against a patent they believe does not comply with the substantive provisions of the EPC. The EPO opposition division's decision in such matters accepted in all the contracting states the patent is concern is designated for.
Appeals may be lodged against the decisions of the Receiving Section, the examining divisions and the opposition divisions. The members of the boards of appeal of the EPO are impartial, their decisions being governed solely by the provisions of the EPC. Where necessary, cases may be referred to the Enlarged Board of Appeal as the body responsible for ensuring uniform application of the law.
Phase 4
EP validation in EPC member states
EP must be validated at least one of the member states of the EPC. This process can be entered in general within 3 months after publication of the EP at the national patent offices through national patent attorneys. At an infringement you should also turn to a national patent attorney.
