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The EPC 2000
A landmark change for European patent practice
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The European patent system turned the page to a new and important chapter on 13 December 2007, when the revised version of the European Patent Convention, the EPC 2000, came into effect. Since that date, the member states of the European Patent Convention are adhering to the new version of the treaty. This happened exactly two years after Greece provided the necessary majority by becoming the fifteenth contracting state to ratify the EPC 2000 on 13 December 2005 to replace the old text.
The European Patent Convention (EPC) is a multilateral treaty that provides a single legal framework and unified procedure for the granting and litigation of patents in all contracting states. The EPC is the legal basis for the European Patent Organization and its executive organ, the European Patent Office (EPO).
While the revised European Patent Convention poses little change in terms of substantive patent law - meaning what is patentable and what is not - it poses a number of refinements in procedural practice compared to its predecessor, the EPC 1973, which had governed patent practice up to December 2007. At the same time, the EPC retains the high key standards and time-tested structure for which the European patent system is known.
"The new convention is a further milestone in international patent law in Europe," says Alison Brimelow, President of the EPO. "It simplifies access to Europe-wide patent protection and makes procedures before the EPO easier for applicants and patent proprietors, while maintaining the Office's reliable structures and high quality standards".
A necessary step
Over the past decades, the EPC 2000 had become necessary due to a number of developments in international law and the need to improve the procedure before the EPO.
In addition, patents have emerged as key instruments for the knowledge economy in the global marketplace, informing of and protecting inventions and ideas on an international level. As a global player in patents, the EPO has become one of the main access points for the protection of inventions with the help of patents. The changes in the revised version of the EPC reflect especially the need for inventors, researchers and businesses to access the patent system more easily, and to benefit from a greater flexibility in the procedure before the EPO. For that purpose, more than 100 articles and rules in the Convention were modified with a view to modernising this procedure.
Answers to key questions
In its new form, the EPC 2000 brings practice at the EPO in line with international developments by reflecting the latest status quo in international patent law, such as the Agreement on Trade Related Aspects of International Property Rights (TRIPS) of the World Trade Organisation and standards of the Patent Law Treaty. Some provisions have been deleted and others simplified to achieve shorter processing times and to render the procedure more flexible. At the same time, new provisions contribute to improving its legal certainty and strengthen the rights of applicants.
Also, to ensure that the EPC will continue to reflect the needs of applicants in the knowledge economy, the EPC 2000 boasts a more flexible structure that allows it to be amended easily in the context of future developments in patent law and litigation, especially also as regards its adaptation to EC law. Many such amendments can now be made directly through the Administrative Council and no longer require specific diplomatic conferences of the member states. To quote the EPO President: "The new EPC can be adapted to future Community law and new international patent law more easily than the old convention, as legislative procedure has been greatly streamlined for amendments serving that purpose".
Changes for users
Many new refinements of the EPC reflect the demands of the users of the system; the inventors and scientists that ensure continued progress through their work.
Applications, for instance, can be filed in any language. This eliminates the need for costly translations during the application stage. Only at a later point does translation in one of the three working languages of the EPC (English, French or German) become necessary. Moreover, all EPC contracting states are now automatically designated when filing a European patent.
The requirements for obtaining an official filing date for a European patent application have been simplified significantly. This is in line with the Patent Law Treaty. For example, documentation is not needed at initial filing, but must be submitted later within a designated time frame.
Patentees also have the right to limit their patent. "One major new feature is the limitation procedure, which lets proprietors restrict the scope of their patents of their own accord, in central proceedings before the EPO and with effect for all the contracting states," says Alison Brimelow. "Previously there were comparable procedures in only six of the 32 contracting states, and each had legal effect only in the country concerned". As a flexible and direct reaction to infringement trials or other legal contestations, patent holders have the choice to agree to amend the patent and keep it in limited form, as opposed to leaving contestation an open and ongoing process.
Further processing is now the standard legal remedy for applications where a time limit is not observed. If applicants fail to meet prescribed time limits, they can instigate further processing just by paying a fee, whereas before they had had to go through a time-consuming procedure for re-establishing their rights.
A significant step towards strengthening the rights of patentees is the possibility to have decisions of boards of appeal reviewed. Patentees can now petition the Enlarged Board of Appeals to review decisions made by boards of appeal concerning their patents. This, however, only applies in case of procedural violations.
Outlook
Since 13 December 2007 on, all new patent applications filed with the European Patent Office are being processed by that Office in line with the regulations of the EPC 2000. To avoid double standards and unnecessary complications, the EPC 2000 is also being employed to process currently pending European patent applications, wherever no other restrictions or contrary indications apply.
The European patent system has taken a great step towards a more flexible and user-friendly structure, while keeping in line with the latest developments in international patent law. With its high degree of procedural flexibility and legal compatibility, the revised EPC is designed to meet the demands of an ever-changing and rapidly developing patent landscape in Europe.