Patent applications in Europe

1. What is a European patent?

European patent is a right for technical inventions which confers on its proprietor an exclusive right to an invention. Any third party is prohibited to manufacture, to offer, to place on the market, to use or to import the patented subject-matter without the consent of the patent holder.

The term of a European patent is 20 years.

The protective effect of a European patent does not automatically cover all European member states, but only those states in which the European Patent is validated at the time of grant. The requirements vary from state to state. In some states, no action is needed, whereas in others actions must be taken at the national patent office. Typical actions are a fee payment, filing a translation of the claims or full text, and filing of a power of attorney for a local law firm. Patent protection in Europe is therefore territorially limited to those states where the patent is validated at the time of grant. A list of the member states can be found on the EPO website.

2. What can be protected?

Patents in Europe are granted for technical inventions which are new (=novel), involve an inventive step and are susceptible of industrial application. Consequently, basically all technical devices and methods may be subject to patent protection, provided that they are of a technical nature.

In contrast to that, the following subject matter is excluded from protection: Discoveries and scientific theories and mathematical methods; aesthetic creations, schemes, rules and methods for performing mental acts and the mere presentation of information regarding games or business methods, and computer software, provided that the European patent application relates to such subject matter or activities “as such”.

In the field of computer programs there has developed a special legal practice referring to software patents. According to the latest jurisdiction, the crucial point to decide whether software related subject-matter may be regarded as an invention is the presence of a “further technical effect”. More information about software patents can be found in the menu software patents. You may also contact Wolfgang Keilitz or Miles Haines who are specialized in software patenting.

For additional information on patent law, please also have a look at the website of the EPO.

3. How do I apply for a European patent?

patent application can be submitted at the European Patent Office (EPO). The documents of the patent application must include: A description, patent claims, drawings (optional) and an abstract. Further information can be found on the website the European Patent Office.

4. What happens after filing?

After filing a European patent application, the EPO will search for relevant prior art and issue an extended search report including an opinion on the patentability of the invention. The opinion discusses, if the requirements of novelty and inventive step are met.

Upon receipt of the European search report, the applicant can respond to any objections by amending the patent application (or arguing against them). At the latest this needs to be done within 6 months after the publication of the search report, when also the examination and designation fees are due.

Novelty

An invention is new, if it is not part of the state of the art. The state of the art is everything that has been made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the patent application (which may be the priority date if priority is claimed).

If the subject matter of the patent was already well-known to the public before the application or priority date, the application is rejected for lack of novelty. Additionally, the content of earlier European patent applications, the dates of filing of which are prior to the filing date of the present patent application and which were published on or after that date, shall be considered as comprised in the state of the art.

Inventive Step

An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

For example, if the claimed subject matter can be derived from a combination of two prior art documents in the same technical field of the invention, the EPO may allege lack of inventive step.

In this case it is possible to argue against the objection by explaining why a skilled person would not make the combination, or to limit the scope of the independent claims by incorporating one or more additional technical features.

5. How much does a patent in Europe cost?

In addition to the official fees, attorney fees for preparing the application documents and for filing the patent application fall due. The fee for preparing the application documents depends on the effort involved. Please contact us for an individual offer.

After filing the patent application, additional costs incur in connection with the examination and granting procedures as well as payment of annual maintenance fees (=renewals, annuities).

You may calculate the costs of a European patent over its entire term of 20 years by means of our online cost calculator for European patents.

If you have any questions about patent applications in Europe, we are pleased to advise you. Please feel free to call one of our European Patent Attorneys in Munich.