The main legal sources determining the framework for patent protection in Europe are the European Patent Convention and the EU Directive 98/44 on the legal protection of biotechnological inventions.
What is patent protection?
Patent protection is a private right granted by the State for an invention in any field of technology allowing its holder to prevent third parties, amongst others, from making, using or selling the invention without his authorization during a certain period of time, in exchange for the disclosure of the invention. By obtaining patent protection on an invention the right holder gets into the situation of controlling his invention for a period of 20 years (starting from the filing of the application). As all IP rights, patent protection is also territorial, meaning that it provides protection only on a given territory. The scope of a patent on an invention is determined by the so-called patent claims.
How is patent protection obtained?
To be eligible for patent protection, an invention (which may be a process, a product or a specific use) has to meet the patentability requirements, in other words, it has to be new, inventive and needs an industrial application. Furthermore, the documentation of the application has to describe the invention in a manner which enables other persons skilled in the art to reproduce the invention.
As already mentioned, patent protection provides a territorial right but the application process and the granting procedure to get protection can be centralized. An application for patent protection can be submitted either to a national patent office or directly to the European Patent Office (EPO). In the application to the EPO, the countries (among the members of the European Patent Convention) where patent protection is sought have to be designated. Following an examination of the formalities and an initial search report, the application is published. This is normally 18 months after the date of filing. As of this moment we talk about “published applications” and as of this moment a European patent application confers provisional protection on the invention in the countries designated in the application. At the same moment, the substantial examination of the application, i.e. the examination whether the invention meets the patentability criteria, is launched. The decision in the end is taken by the examining division of the patent office and the information regarding the grant of a patent is published in its official bulletin. As of this moment, we talk about a granted patent. Within 9 months following the grant, a patent can be opposed before the EPO by any third party if they believe that the patent should not have been granted. Once the opposition period is over, the patent lives its individual life in every country where it has been granted but can always be limited or invalidated by national courts, if challenged.
To find out more about the application and granting process please refer to the EPO website.
For all types of patent searches in Europe the most valuable tool is espacenet the on-line database of the European Patent Office where all relevant information on the patent family can be checked.
For information regarding protection by plant breeder’s rights in Europe the database of applications and titles in force of the Community Plant Variety Office (CPVO) should be consulted.