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A patent is an exclusive right granted by countries or communities for the protection of inventions, whether products or processes, that offer a new technical solution or provide a new way of doing something, during a limited period of time, usually 20 years. In return of this limited monopoly, the owner of a patent must disclose the invention to the public, in the patent application. A patent is a territorial right and has its effects within the national boundaries of the country for which it was granted.

In order to get patent protection, inventors must file a patent application, since registration is a requirement in order to obtain protection.

Example of a patent:  Tinting Plastic Optical Lenses

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Patents are territorial rights that require registration - that is, in order to protect your invention in a given country, you must file a patent application in the country concerned or through a regional patent office designating countries in which protection shall be obtained. The European Patent Office offers a very simplified way to apply for several national patents through a unique "European" patent application. You can also file an application under the Patent Cooperation Treaty which allows the owner of an invention to seek for a national patent protection in several countries by filing one “international” patent application.

Hence, if you would like to have a patent in an EU Member State, we suggest that you contact the national patent office of the country or one of the regional patent offices in order to file the patent application there. Irrespective of the filing procedure, the rights to which you are entitled will depend on the national law of the country of registation.

Please note that filing a patent application is highly technical, and choosing the appropriate procedure (at national, European or international level) certainly has implications in terms of cost and time. Therefore, we encourage you to seek legal advice before taking the decision to submit any patent application.

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If you want patent protection in more than one EU Member State, it is possible to file patent applications directly in each of the national patent offices of the countries where you seek protection. Another option that you have is to use the European Patent Convention (EPC), which allows you to register patents in more than one European country through a single application. In this way, even though you file only one patent application, you will be granted as many patents (usually called European patents) as the number of countries you have designated. These patents are then treated as national patents in each of the designated countries. You will find information on the countries where this procedure is available here.

For further information on the procedure to file a patent under the European Patent Convention, we suggest that you consult the following links:

(i)    Guide for Applicants, prepared by the EPO

(ii)   Information on how to apply for a European Patent, also prepared by the EPO

Please note that filing a patent application is highly technical and has important implications in terms of cost and time. Therefore, we encourage you to seek legal advice before taking the decision to submit any patent application.

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The Unitary patent is a single European patent with unitary effect in the 26 EU Member States which have engaged in an enhanced cooperation to this effect. The unitary patent is granted by the EPO under the rules and procedures of the European Patent Convention.  In order to obtain a unitary effect, patent holders need to request the unitary effect at the European Patent Office (EPO) within one month of the date of publication of the patent grant in the European Patent Bulletin.

The Unitary patent may be requested from the date of entry into force of the Agreement on a Unified Patent Court. This Agreement was signed by 25 EU Member States and will need to be ratified by at least 13 Member States, including France, Germany and the United Kingdom, in order to enter into force. This is predicted to take place in the first quarter of 2018 per the EPO.

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No. The unitary patent will co-exist with national patents and with classic European patents (i.e. without unitary effect) as a third option for companies or inventors seeking patent protection in Europe. Patent applicants remain free to choose between national patents, classical European patents and unitary patents. They can also use a combination, such as:

  • a unitary patent for the Member States participating in the unitary patent cooperation, together with national patents covering the member states which did not take part in this cooperation;
  • a unitary patent for the Member States participating in the unitary patent cooperation; together with a classic European patent taking effect in one or more Contracting States to the European Patent Convention which do not participate in the cooperation, such as Spain, Switzerland, Turkey, Norway, Iceland, etc.
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Compared to the “classical” European patent which becomes a bundle of national patents validated in each Member State where protection is requested, the Unitary patent will give its holder a unique patent protection – uniform scope and equal effect of protection -  in 26 Member States of the European Union. For the applicants, this entails no further need for national validation, and offers a single annuity, one place to register transfers and licencesand after grant, and no further translation requirements.

The aim of the Unitary patent is to simplify the existing system by offering businesses an alternative route to patent protection and dispute settlement.

The existing system incurs costs for validation and renewal fees in each Member State where protection is granted, including related translation costs. In comparison, there is only a single renewal fee for the Unitary patent, and no validation costs except the cost for one translation during the transitional period.

Indeed, for a transitional period of 12 years, until a machine translation system maintained by EPO (called “Patent translate”) becomes fully operational, a full translation into English of the European patent specifications must be provided if the Unitary patent is granted in German or French or, if the language of the proceedings is English, into an official language of a EU member state. In any case, translations into a relevant EU language may be requested by a court or by a defendant in an infringement case.

Unlike enforcement of European patents, which has to be carried out in each national jurisdiction, the Unitary patent may be enforced or revoked in a single action for all the participating territories before the Unified Patent Court.

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The Unified Patent Court will be a common patent court for the 25 Member States that have signed the Agreement on the Unified Patent Court. This Agreement is still undergoing a process of ratification by the contracting Member States and therefore the Court will start to examine cases only when it enters into force.

The European Patent Court will have exclusive competence in respect of actions of infringement, declarations of non-infringement of patents (classical European patents and European patents with unitary effect) and supplementary protection certificates, revocations of patents and declarations of invalidity of supplementary protection certificates, actions for provisional and protective measures and injunctions.

The UPC will not have competence with regard to national patents or supplementary protection certificates granted for a national patent.

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If you have decided to protect your invention by patent in several European and non-European countries, you may consider filing an international patent application under the Patent Cooperation Treaty (PCT). Similarly to the EPC, the PCT provides for the filing of a single patent application (usually called an international application) with effect in several countries. The difference is that a PCT patent application does not have a regional scope like the EPC, but an international one. For further information on the procedure to file a patent under the PCT, we suggest that you consult the following links:

(i) Countries where PCT International procedure is available;

(ii) The PCT’s Applicant Guide prepared by WIPO;

(iii) The Guide for Applicants prepared by the EPO.

Please note that filing a patent application is highly technical and has important implications in terms of cost and time. Therefore, we encourage you to seek legal advice before taking the decision to submit any patent application.

 

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No. An invention in all fields of technology can be protected, but it must fulfil the following requirements:

  1. Novelty: it must show a new characteristic which is not known in the existing knowledge in its technical field - that is, not being part of the state of the art;
  2. Inventive step: the invention can not be deduced by a person with average knowledge of the technical field;
  3. Practical use:  it must be capable of industrial application.

Countries may also deny under their laws patent protection to determined subject matters or types of inventions such as mathematical methods, scientific theories, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products).

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No. Inventions can also be protected by trade secrets if you keep them in secrecy. In some EU Member States, you may file an application for utility models as well as a patent application.

  Patent Utility Model Trade Secret
Advantages
  • exclusive right
  • effective tool against imitators
  • protection up to 20 years, which is generally considerably longer when compared to utility models
  • exclusive right
  • effective tool against imitators
  • lower registration costs when compared to patents
  • no registration costs 
  • protection not limited in time
  • no disclosure required
Disadvantages
  • costs for registration can be high 
  • the invention must be disclosed in the application
  • not available in all countries
  • costs for registration
  • shorter protection than patents
  • not available for all kinds of inventions
  • often not an effective tool for product inventions
  • limited remedies available 
  • not easily enforceable
  • can be patented by others 

Thinking about market strategy, publishing an invention may also be an option for protection, if you do not need to have exclusivity. It is certainly a cheaper option and it has the advantage of blocking others from getting a patent on the same invention. However, take into account that you will be revealing your innovation to possible competitors.

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Conducting patent searches is very useful for several purposes, not only for organisations such as SMEs and universities, but also for researchers. Indeed, patent databases are a goldmine of technical and commercial information that can be used to:

  • guide the definition of an organisation’s IP strategy (identifying, for example, any barriers to developing an IP strategy, the avoidance of obstacles, etc.);
  • define the state of the art (to find out what already exists, to check novelty, to improve the quality of a patent application, to understand the IP landscape surrounding your projects and IP);
  • check for freedom to operate (to check if you do not infringe someone else's rights, or to search for the validity of third parties’ IP);
  • check if someone is not in a position of infringing your rights (infringement still needs to be proved);
  • keep track of who’s doing what (commercial intelligence).

Many of the patent applications that you can find in the databases are not even “in force” and therefore are free to be used in your own projects. This can happen for different reasons, such as the application's failure, withdrawal or expiry.

 

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Patent owners in the EU are generally entitled to prevent others from making, using, offering for sale, selling, or importing for these purposes the invention without prior authorisation.

Consequently, if you get patent protection, other persons and organisations cannot exploit your patent protected work without your consent. However, it is important to remember that you will be entitled to this set of rights only in the territories where you have been granted a patent and as long as the patent subsists.

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The meaning of the expression “Patent Pending” varies depending on the national law of each country. However, in principle this term is used in reference to:

-          the legal status of a patent application - “notice given (by the relevant Intellectual property office) that an application for a patent has been filed and that legal protection (including retroactive rights) may be forthcoming” – source: EPO

-          a warning notice that is affixed in products to inform the public that an application for a patent on that product was filed and to ward off potential infringers; even if not compulsory, such a notice can be particularly relevant in court infringement proceedings. On the other side, in most countries you are allowed to apply the term “patent pending” to a product only if there is, in fact, a pending patent application. If a product is marked with “patent pending” when there is no associated patent application, most national laws in the EU countries sanction this behaviour - usually under competition law and/or patent law.

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The inventor is the creator of the invention. In the EU this term is defined by each member state’s legislation. In general, in order for one to be considered an inventor, it is acknowledged that a certain level of contribution to the development of the creative elements of an invention (technical creativity) must be met. Inventors are always private individuals and are always entitled to be designated on the patent, regardless of who files the application. Joint inventors or co-inventors exist when a patentable invention is the result of the inventive work of more than one inventor, even if they did not contribute in equal parts.

According to the European Patent Convention (EPC), of which all EU member states are signatories, in principle the inventor, or his successor, has the right to the patent. In practice, whoever applies for a patent is presumed to be the inventor, so the inventor and the applicant usually coincide. In many jurisdictions, however, the applicant will not necessarily be the inventor – for instance in cases where the ownership of the invention has been contractually assigned to another entity –  even if the inventor will always keep the right to be mentioned as such in the application. This greatly depends on national law, although the EPC regulates the question in broad terms.  In particular, in several countries there are laws on employees’ inventions and on inventions made at universities (professors’ privilege) that may establish a special regime. For example, it is very common that in the context of an employment relationship, rights in inventions created by employees are assigned to the employer by the employment contract or considered as belonging to the employer by law. In that case, the applicant (i.e. the future owner of the patent) is not the inventor.

Finally, ownership recognises a proprietary right to the invention that will in principle vest in the applicant after the patent is granted. As a proprietary property right, the ownership of a patent can be transferred.

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According to the European Patent Convention, a patent application filed within the EPO provisionally confers from the date of its publication the same rights which a national patent would confer once granted in the designated countries. These are the legal rights which the national law of the designated countries may confer upon the proprietor of a patent on an invention (product or process) when granted. For example, this provisional protection can refer to what acts of third parties constitute infringement of the patent and to the remedies available in respect of infringement. In principle, this means that the applicant can claim reasonable compensation from any person who has used the invention after the publication of the patent application, provided that such use would be considered an act of infringement of a national patent under the relevant national law.

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The cost of patent applications varies from country to country and depends on the route taken to pursue protection (national, European or international).

Nevertheless, there are costs other than the fee that you must pay for the application which you should consider, in particular the following:

  • After the application and during the life of a patent, applicants must pay renewal fees. These payments are requested by most patent offices and are a requirement to keep patents valid (until their expiry date, which is usually after 20 years).
  • The cost of services of patent attorneys or agents, which in some countries may be very high, must also be added to the total cost.
  • Translation may be required, which can substantially raise the cost of a patent application.
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Even though everyone could theoretically draft their own patent application, we believe that this is not advisable. Patent applications are very technical and, given the costs that they involve as well as the importance of a careful preparation, we encourage you to seek advice from a patent attorney or patent agent.

The Enterprise Europe Network (EEN) can assist you in finding such a specialist. To find the nearest EEN branch, please click here. You may also find lists of authorised patent attorneys in many National Patent Offices and at the European Patent Office.

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A supplementary protection certificate extends the period of effective protection for patents on new medical products for which an authorisation to be placed on the market is required.

A supplementary protection certificate serves as a compensation for the investments put into research for the period that elapses between the filing of a patent application for a new medicinal product and the obtention of an authorisation to place such a product on the market.

In the European Union, a supplementary protection certificate can be granted under the following conditions:

·         at the date of the application for supplementary protection, a product is protected by a basic patent in force;

·         the product has not already been the subject of a certificate;

·         a valid and first administrative authorisation to place the product on the market as a medicinal product has been granted.

Supplementary protection certificates are applied for and granted at national level by the competent industrial property office of the Member State where the basic patent has been issued and in which the authorisation to place the medical product on the market was obtained.  At national level, each European Union Member State can designate another specific authority for this purpose.  

Once granted, the certificate takes effect at the end of the lawful term of the basic patent for a period equal to the period which elapsed between the date on which the application for a basic patent was lodged and the date of the first authorisation to place the product on the market in the European Union, reduced by a period of five years.

However, the duration of the certificate may not exceed five years from the date on which it takes effect.

This means that the holder of both a patent and a certificate benefits from an overall maximum of 15 years of protection from the moment the medicinal product in question first obtains the authorisationto be placed on the market in the European Union.

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Grace period is a specific period of time preceding the filing of a patent application, during which certain types of disclosures of the invention (for which the patent application is filed) do not destroy its novelty.

In general, in order for an invention to be patentable, the novelty criterion has to be fulfilled, that is to say, the invention should not be disclosed to the public before the patent application is filed.

However, some countries under certain circumstances do not take prior disclosures into account in determining patentability, provided they took place within a certain period of time (grace period) preceding the date of filing.

Grace period simply protects the inventor from unauthorised, or (in certain countries) authorised, disclosure of an invention before a patent is filed for. The grace period is usually 6 or 12 months.

Most of the European Patent Convention (EPC) member states adopt a ‘conditional’ patent grace period, that is to say they provide for a grace period under certain circumstances. For instance, in Germany disclosure is not to be taken into account in determining the novelty of a patent if it occurred within six months before the filing date (priority date) due to:

1. an evident abuse to the prejudice of the applicant or his predecessor in title;

2. display of the invention at an official or officially recognized exhibition.

For more information regarding the countries that grace period applies you can have access to the WIPO’s report regarding certain aspects of national/regional patent law available form here.