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The European Patent Convention and the London Agreement

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The European Patent Convention and the London Agreement Feature European changes The European Patent Convention and the London Agreement EPC 2000 – why change? By Pierre-André Dubois and Shannon The EPC 1973 came into force in 1977 and Yavorsky, Kirkland & Ellis International LLP revolutionised patent practice. However, in the last 30 years, the patent landscape The European Patent Convention (EPC 2000) changed significantly and it became apparent came into force on 13th December 2007, that there was a real need to overhaul the introducing sweeping changes to the dated legislation. First, the Agreement on European patent system. The new Trade Related Aspects of Intellectual convention governs the granting of European Property Rights (TRIPs) and the Patent Law patents by the European Patent Office (EPO) Treaty (PLT) came into force, and it was and applies throughout the 34 contracting questionable whether the EPC 1973 was in states of the European Patent Organisation line with the provisions of each of these (ie, the 27 EU Member States as well as agreements. As one example, the EPC 2000 Croatia, Iceland, Liechtenstein, Monaco, clarifies that, in accordance with TRIPs, Norway, Switzerland and Turkey). The original patents can now be granted in all fields of convention (EPC 1973), which dates back to technology as long as they are new, 1973, was outdated due to a number of comprise an inventive step and are developments in international law and the susceptible of industrial application. Second, need to improve the procedure before the the EPC 1973 was difficult to amend and, in EPO. While the new convention does not the face of fast-changing technology and overhaul substantive patent law (ie, what European legislation, required greater is patentable and what is not), it does legislative flexibility. Under the EPC 2000, introduce a number of changes which many amendments can now be made directly patent owners will need to be aware of. through the Administrative Council and no The EPO has commented that the text of longer require specific diplomatic the EPC 2000 is more adaptable to new conferences of the contracting states. developments than the old text, which will Finally, the new text goes a long way to enable it to keep current with developing assist applicants, who can now file patent Community law. A main feature of the new applications in any language (although within convention is the strengthened rights for two months a translation must be submitted applicants. in English, German or French). Another key development is the London Pushing the EPC 2000 through the Agreement which, after many years on the political system was not an easy task. table, is expected to come into force in Although the EPC 2000 was agreed, it did not 2008. The key aim of the London Agreement automatically come into force: no less than is to reduce costs for patent holders by 15 contracting states had to ratify it for the introducing a cost-effective translation contracting states to be bound by it. It was regime for European patents. The countries therefore not until late 2005 that the 15th which are party to the agreement agree to state (Greece) ratified and the remaining waive, either in part or in whole, the contracting states had to follow suit. requirement for translations of already granted patents in their national language. EPC 2000 – what’s new? The agreement is expected to spare patent Although there are a number of small holders significant costs relating to the changes to the text, tidying up the language translation of European patents and and clarifying certain translated words, there associated patent attorney fees. are a number of important features of the www.iam-magazine.com IP in the life sciences industries 2008 27 European changes EPC 2000 which will impact on patent addressing the scope of patent claims. practice in the contracting states. The key However, the original amended text, which changes concern the following: was closer in spirit to a US-style doctrine of • “novelty only” prior art. equivalents, was rejected and the watered- • medical use claims. down text may be narrower than the US • doctrine of equivalents. doctrine. It is likely that case law in this area • post-grant amendment. will flesh out how far this provision will • Enlarged Board of Appeal. actually go towards establishing a true doctrine of equivalents. Additionally, a number of procedural changes broadly bolster applicants’ rights and Post-grant amendment streamline the process of obtaining a patent. The EPC 2000 contains a mechanism whereby a patent proprietor can request that “Novelty only” prior art a granted patent be amended or revoked Under the EPC 1973, a European patent centrally at the EPO. Under the EPC 1973, a application filed before but published after granted patent could be amended outside of the priority date of a later application was the opposition procedure only by applying prior art against the later application only in separately to the patent office or courts of relation to novelty and only in respect of each designated state, which was a costly commonly designated states. Under the EPC and time-consuming process. 2000, an earlier application will be prior art against the later application for all Enlarged Board of Appeal designated states, although still only in The European patent system came in for relation to novelty. criticism because there was no further avenue of appeal beyond the Boards of Appeal. Medical use claims Although national courts could revoke a Under the EPC 1973, claiming a medical patent which had been upheld by the Boards invention was complex. Methods of treatment of Appeal, they could not review a refusal by and diagnosis were not patentable, but the the Boards of Appeal. The EPC 2000 substances and compositions used in such introduces the possibility of a “petition for methods of treatment and diagnosis were review” in relation to decisions of the Boards patentable. The issue was that although a of Appeal to the Enlarged Board of Appeal. first medical use of a substance was A petition for review may be based only on the allowable, any further or secondary uses had grounds defined in the EPC 2000. These are: to be claimed using the “Swiss-style” claim (1) fundamental procedural defects which (ie, one which refers to the medical treatment occurred in appeal proceedings; or (2) the indirectly in order to avoid the novel feature existence of a criminal act which may have of the claim being in an excluded field). had an impact on the decision. Three Although methods of treatment and surgery fundamental procedural defects are defined remain excluded, the EPC 2000 eliminates under the EPC 2000: any uncertainty over the patentability of • a breach of the provisions of the further medical uses. It allows purpose- convention governing exclusion of and related product protection for each further objection to members of a Board of new medical use of a substance or Appeal. composition already known as a medicine, a • participation of someone not appointed welcome development for the pharmaceutical as a member of the Boards of Appeal. and biotech industries. • a fundamental violation of Article 113 concerning the right to be heard and the Doctrine of equivalents basis of decisions. A “doctrine of equivalents” (ie, where claim protection can be extended to cover Although this is not a general appeal embodiments that do not fall within the procedure, it does expand the scope for literal scope of a patent’s claims, but which certain cases to have a further avenue of are equivalent to those claimed) has long appeal. been recognised in some jurisdictions (including the United States), but was never Procedural changes recognised by the EPO (and in fact was Several key procedural changes brought by rejected in the UK by the House of Lords). the EPC 2000 have the effect of The EPC 2000 now recognises that streamlining the patent process, as well as equivalents should be considered when ramping up applicants’ rights in general. 28 IP in the life sciences industries 2008 www.iam-magazine.com European changes These changes relate to priority claims, filing procedure did not apply in all circumstances. dates and further processing. The further processing procedure under the EPC 2000 broadens the scope of application Priority claims of further processing and makes it the Under the EPC 1973, applicants wishing to standard remedy in cases of failure to claim priority had to file a declaration of observe time limits in the European patent priority, a copy of the previous application grant procedure. Importantly, this change and, where the latter was not in an official means that non-payment of filing, search, language of the EPO, a translation of the examination and designation fees can be previous application into one of those remedied by using further processing. languages. Under the EPC 2000, as part of compliance with TRIPs, an application in any Transitional provisions World Trade Organisation (WTO) member Under transitional provisions of the EPC 2000, country can be used to establish priority. most of the revised provisions apply to patents Pursuant to both the Patent Cooperation already granted and applications still pending. Treaty (PCT) and the PLT, where the earlier The EPC 2000 applies to all European patent application is not in a language accepted by applications filed after its entry into force and the EPO, a translation of the priority to all European patents granted in respect of document may be required only where the such applications. It will not, however, apply to validity of the priority claim is relevant to the European patents already granted when it determination of the patentability of the enters into force or to European applications invention concerned. This amendment is pending at that time, unless otherwise another key change which strengthens decided by the Administrative Council.
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