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- SOUTH AFRICA
MEMBER STATES: Albania, Austria, Belgium, Bulgaria, Cyprus, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, San Marino, Serbia, Switzerland, Netherland, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Turkey, United Kingdom, Former Yugoslav Republic of Macedonia.
- EPO office at Munich
- Branch office in Hague
- Sub offices at Berlin & Vienna
Patent filing and protection in the whole of the EU may be obtained by a single procedure for the grant of patents. This protection is valid in upto 40 European countries.
Filings can be in any language. However, official language of the EPO are, English, French and German. Applications not filed in any of these languages need to be provided with translations. å
INTERNATIONAL TREATIES TO WHICH EUROPEAN UNION IS SIGNATORY
International Treaties to which EU is signatory:
- Paris Convention for the protection of industrial property
- Patent Co-operation Treaty – PCT.
- Agreement on Trade Related Aspects of Intellectual Property Rights –TRIPS.
- European Patent Convention EPC.
BASICS REGARDING PATENTABILITY OF INVENTIONS IN EUROPEAN UNION:
Inventions may relate to products, processes or industrial applications. Patents are therefore granted to inventions that:
- Are New or Novel
- Involve an inventive step
- Comprise of a process or an Industrial application of the invention.
For an Invention to be patentable, it should contain the following:
(i). Novelty: An invention is considered new or novel if it is not included in the state of the art. State of the art consists of all the information available and accessible to the public prior to the date of the patent application.
(ii). Inventive Step: An invention is said to contain an inventive step if for ‘a man skilled in the art it does not yield results in an obvious way from the state of the art’.
(iii). Industrial Application: of the invention would be ‘when the object of the invention may be produced, manufactured or used in any kind of industry including agriculture’
INVENTIONS NOT PATENTABLE IN EUROPEAN UNION:
Inventions pertaining to the following:
- Discoveries, Scientific Theories & Mathematical methods.
- Aesthetic creations.
- Schemes, Rules, Methods for performing mental acts, playing games, doing business as well as Presentation of Information.
- Programmes for Computers.
- Inventions contrary to public order & morals.
- Methods of treatment on humans and animals.
- Plant or Animal varieties or Bio processes for the production of plants or animals except micro-organisms.
- Any biological process which is essential in producing plants or animals, except non-biological processes or microbiological processes.
PartityPatents Law Firms through its associates with European Patent Office is at hand to help you with patent registration and prosecution.
FILING REQUIREMENTS OF PATENTS IN EUROPEAN UNION:
(i). A request for grant.
(ii). A description of the invention.
(iv). Drawings if any.
(vi). An indication that an European patent is sought.
(vii). Particulars identifying the applicant.
(viii). Reference to a previously filed applicatio
EXAMINATION OF THE PATENT APPLICATION IN EUROPEAN UNION:
Once the application is filed, the application is scrutinised for defence & security aspects along with formality and substantial compliances.
Post Patent grant by the European Patent Office (EPO), Patent needs to be validated in the member country as designated on the Patent application.
Patent Validation comprises of certain formalities and requirements per national laws of the designated country.
Parity Patent Attorneys and Associate Law Firms in EPO are at hand to help and assist you with Patent Validation.
RIGHTS OF THE PATENTEE IN EUROPEAN UNION:
Patents with a term of 20 yrs
- Patents confer to its holders or his successors an exclusive right to work the invention.
- Patentee may authorise such uses of the patent through a contractual agreement with interested parties as to import, rent out, deliver or sell the product patent.
- He may authorise the working of the patent either by a manufacturer or by an importer.
- Patentee may even assign, lease or licence the patent.
- He is entitled to take legal action against infringers.
COMPULSORY LICENCES OF PATENTS IN EUROPEAN UNION:
The European Union Regulation lays down a procedure allowing undertakings wishing to manufacture generic pharmaceutical products for export to apply to the national authorities for the granting of a “compulsory license” from a patent holder who has exclusive rights to the products in question and their sale under the following circumstances:
(i). Compulsory licenses are granted where the products concerned are intended for export to eligible importing countries with public health problems. The Regulation identifies the following categories of eligible importing countries: • the least-developed countries (LDCs); • World Trade Organisation (WTO) members, other than the LDCs, which have notified the Council for TRIPS of their intention to use the system as importers; • Non-WTO members which are listed as low-income countries by the Development Assistance Committee (DAC) of the Organisation for Economic Cooperation and Development (OECD) and have notified the Commission of their intention to use the system as importers.
(ii). It is the responsibility of the competent authorities of the Member States to order that a compulsory licence be granted. The competent authorities are those with the power to grant compulsory licences in accordance with national patent law, unless otherwise provided for by the Member State. The European Commission must be notified of such alternative provisions.
(iii). Anyone may apply for a compulsory licence to the competent authorities of the Member State(s) where the patents are applicable. (iv). If the applicant for a compulsory licence has submitted applications for the same product to several countries, this must be mentioned in each application with an indication of the quantities and importing members concerned.
(v). The applicant must prove that he has received a specific request, either from the importing country or its authorised representative, or from a health organisation (be it non-governmental, a United Nations body or another international organisation) acting with the formal authorisation of one or more importing countries.
(vi). The competent authority must notify the rights-holder without delay of the application for a compulsory licence. The competent authorities must verify that the basic admission requirements for making use of the system have been satisfied.
(vii). The competent authority must therefore check that each WTO-member importing country mentioned in the application has notified the WTO in respect of each of the products covered by the application. For importing countries that are not WTO members, the competent authority must check that the Commission has been notified. The competent authority must also check that the quantities indicated in the application are no greater than those which were notified to the WTO or the Commission. In this notification, the importing countries (except LDCs) must in particular show that their pharmaceutical manufacturing capacity as regards one or more specific products is insufficient or non-existent.
(viii). The applicant for a compulsory licence must also provide evidence that he has endeavoured to obtain authorisation from the rights-holder and that these endeavours have not been successful within a period of thirty days before submitting the application. This rule does not apply in the event of national emergency, nor in cases of public, non-commercial use.
(ix). The competent authority may refuse to grant a licence if one of the conditions is not met. Once granted, licences are non-exclusive and non-transferable and must be notified to the Council for TRIPS through the intermediary of the European Commission.
(x). The compulsory licence is strictly limited to the quantities needed by the importing country or countries indicated in the application and to the manufacturing of the product in question for export and distribution there. Thus, no product manufactured or imported under a compulsory licence may be sold or marketed in any country other than those indicated in the application. This does not apply to exports to partner countries in a regional trade agreement which have the same health problem. Products manufactured under the licence must be clearly marked by a label or special marking to distinguish them from those manufactured by the rights-holder, provided that this is physically possible and does not have a significant impact on the price.
(xi). If the products covered by the compulsory licence are patented in the importing countries indicated in the application, they may be exported only if these countries have issued a compulsory licence for the import, sale or distribution of the products.
(xii). Lastly, the holder of the license must make a suitable payment to the rights-holder. This will be calculated by the competent authority on the basis of the economic value of the authorised use under the license and of non-commercial factors in the granting of the license. In the event of a national emergency or in the case of public, non-commercial use, on the other hand, the payment is fixed at a maximum of 4% of the total price paid by the importing country.
ParityPatents along with specialised Patent Lawyers and Patent Attorneys in EU, can assist you comprehensively with Compulsory Licence matters.