2.1.001 This Guide outlines the provisions relevant to the filing of European patent applications, offering practical advice to smooth the way to a European patent. In addition, it briefly describes the post-grant procedures carried out by the EPO. It cannot, however, go into the details or specific issues of the European patent grant or post-grant procedures, and it does not constitute an official commentary on the European Patent Convention (EPC).
If you need more detailed information, you are advised to consult the Guidelines for Examination in the European Patent Office, a comprehensive guide to every stage of the grant procedure and to EPO practice.
The charts in Annexes I and in IV to the present Guide illustrate the course of the grant procedure and the time limits applicants have to observe.
2.1.002 In the right-hand margin you will find references to the provisions
of the EPC, the Implementing Regulations and the Rules relating to Fees, and to passages from the Guidelines for Examination in the EPO (2022 edition) and the Official Journal (OJ) of the EPO. You are strongly advised to consult the works in question before taking any decisions in practice.
The authentic texts of the EPC and the Guidelines are given in two
EPO publications, the European Patent Convention and the Guidelines for Examination in the European Patent Office, both available on the EPO website (epo.org), where you will find the latest edition of these and any of the other publications mentioned in this Guide. We also refer you to the decisions and notices published by the EPO in its Official Journal and on its website.
Decisions of the boards of appeal of the EPO (see points 5.7.0015.7.012) are published on the EPO website. We recommend that you consult the relevant decisions when questions regarding the interpretation of particular EPC provisions arise. The Case Law of the Boards of Appeal of the EPO contains brief summaries of selected decisions and makes it easier to find the relevant ones.
The most important sources for European patent law and EPO practice, along with much other useful information, are accessible on the internet via the EPO website (epo.org).
2.1.003 As in any other patent grant procedure, you need to be thoroughly familiar with patent matters if you are to steer your way successfully through the European route. So if you lack the
requisite experience, we advise you to consult a professional representative before the EPO (see points 4.1.023-4.1.031).
2.1.004 The EPO brochure entitled National law relating to the EPC contains detailed information on the regulations and requirements governing European patent applications and patents in the contracting, extension and validation states. A valuable supplement to this Guide, it is available on the EPO website (epo.org).
2.2.001 A patent is a legal title granting its holder the right – in a particular country and for a certain period of time – to prevent third parties from exploiting an invention for commercial purposes without authorisation. The EPC has established a single European procedure for the grant of patents on the basis of a single application and created a uniform body of substantive patent law designed to provide easier, cheaper and stronger protection for inventions in the contracting states.
The contracting states are: Albania, Austria, Belgium, Bulgaria,
Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Monaco,
Netherlands, North Macedonia, Norway, Poland, Portugal,
Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden,
Switzerland, Turkey and United Kingdom.
In each contracting state for which it is granted, a European patent Art. 64 gives its proprietor the same rights as would be conferred by a national patent granted in that state. If its subject-matter is a process, protection is extended to products directly obtained by that process. Any infringement of a European patent is dealt with by national law (but see point 2.3.004).
A published European patent application provides provisional Art. 67
protection which is no less than that conferred by a contracting state for a published national application and which must at least include the right to reasonable compensation in the event of wrongful infringement.
The standard term of a European patent is twenty years as from Art. 63
the date of filing. Provided that the annual renewal fees are duly paid, patents remain in force for the maximum term.
Article 63(2) sets out circumstances in which the term of a patent can be extended or a longer term granted. This option of extension by means of a supplementary protection certificate (SPC) is intended primarily for medicinal or plant protection product patents, where the administrative approval procedure takes so long that the useful life of the patent is diminished.
2.2.002 European patents may also be effective in some countries that have not acceded to the EPC (extension and validation states). At present these are Bosnia and Herzegovina and Montenegro (extension states) as well as Morocco, the Republic of Moldova, Tunisia and Cambodia (validation states) (see point 2.5.001).
2.3.001 The EPC constitutes a special agreement within the meaning of the Paris Convention for the Protection of Industrial Property.
This means in particular that the principles of the Paris Convention on claiming priority and the national treatment principle also apply in the European procedure and to European applications.
Since nearly all the EPC contracting states are members of the WTO, the relevant provisions of the TRIPS Agreement (Agreement on trade-related aspects of intellectual property rights) are implemented in the revised EPC.
2.3.002 The EPC further constitutes a regional patent treaty within the meaning of Article 45(1) PCT, which means that European patents can be granted on the basis of an international application filed under the PCT. The Euro-PCT Guide deals with this filing route to obtaining patent protection in Europe. It is available on the EPO website (epo.org).
2.3.003 The Agreement on the application of Article 65 EPC – the London Agreement – is an optional agreement aiming at reducing the costs relating to the translation of European patents. The EPC contracting states which have ratified or acceded to the Agreement undertake to waive, entirely or largely, the requirement for translations of European patents. For more information, please consult the EPO website (epo.org).
2.3.004 The future Unitary Patent will be a "European patent with unitary effect", which means a European patent granted by the EPO under the rules and procedures of the EPC to which, after grant, unitary effect is attributed for the territory of the EU member states participating in the Unitary Patent scheme and bound by the Agreement on a Unified Patent Court (UPCA). After grant of the European patent – but no later than one month after the mention of grant is published in the European Patent Bulletin – you will have the option to file a request for unitary effect with the EPO if you wish to obtain a Unitary Patent. The EPO will among other things:
– examine these requests and register unitary effect,
– set up and administer a new Register for Unitary Patent
Protection and collect renewal fees for Unitary Patents.
