Invention Patents in Europe

(Photo credits: telethon)

Patents are monopoly rights for a certain period of time given by a state to those who create qualifying inventions in return of their disclosure to the public of the details of their inventions. 

This means that if you make an invention which you would like to sell and at the same time make sure that nobody else copies this invention you made, you will have to apply for a patent. The patent will usually grant you a maximum of 20 years to stop others from copying your invention. After these 20 years your patent will become public domain and anyone will be able to manufacture it without paying you any royalties or licensing fees. 

Patents grant a monopoly right only in the jurisdiction in which the patent was registered in. You will have to register in each country on its own if you wish to execrise your monopoly right in that country. This post will only talk about the patent system in Europe as the law differs from one jurisdiction to the other. I will talk about the US and Japan in later posts. (Oman’s law is very similar to American law, so I will talk about it in that post).

In the field of technology you can get a patent for a product, a manufacturing method, or a method to create a specific product. It is also possible to get a patent in certain circumates for a computer program.

There are currently two methods for getting a patent in Europe, the first is by going to each country on its own and registering for a national patent, the second is by going to the European Patent Office (EPO) and apply for a bundle of patents for all the member countries of the European Patent Convention. It is worth mentioning that this is NOT an EU intiative and it goes beyond the members of the EU. Getting your patent from the EPO is cheaper than going to all the European countries. An EPO patent is not a *super* European Patent, but a bundle of national patents from all the members. This means that once you patent is issued, if a national court decides that your patent is invalid for any reason then you patent will be invalid in that one country by itself and will not affect the validity of the patent in other places. This is pretty messed up, but because of the lack of a higher court of appeal to take care of European Patent, the industy will like to keep the current system as it is less risky than one which has a super European patent.

So what do you have to do to get a European patent from the EPO?  You simply have to fill a patent application and submit it to the EPO. However, for your patent to be granted, your creation must satisfy the requirements of the European Patent Convention (EPC), namely:

  1. It must be an invention.
  2. It must be novel.
  3. It must have required an inventive step to make.
  4. It must be industrially applicable.

We will go through these one by one:

Your creation must be an invention: The EPC does not define an invention but says that a patent may be granted for any invention in all fields of technology. However, explicity exludes inventions such as absolute theories, mathematical methods, aesthetic creations, mental acts, and mere presentation of information. The EPC also excludes inventions that contravene the public order, methods for treating the humn or animal body (methods – not products), and plan or animal varieties.

The requirement for an invention is usually not problematic, except for the fact that one of the exceptions under Art 52(2) is computer programs. The stance of the law in Europe regarding this is not clear, but I personally understand it as follows, if an invention is a pure computer application that has no novel tangible aspect then it will not be patented, however, if a computer program has some tangible aspect that extends beyound the code, then it will be patented. For example, a word processing application does not create by itself have a tangible aspect, but a program that affects the brightness of the screen depending on the time of the day has that tangible aspect. DO NOT CITE ME ON THIS, THIS IS MY PERSONAL OPINION AND I CANNOT BE BOTHERED TO DIG UP THE CASES/DECISIONS THAT SUPPORT MY OPINION AT THIS MOMENT.

The second requirement for the patent is to be novel. This is a quantitative absolute test that requires the patent to be a new. Art 54 of the EPC says that an invention is considered new if it does not form part of the state of the art.  This simply means that your invention is not like anything we have seen before the date the priority date (first filing date). This is an important because it requires the inventor NOT to disclose the functional details of his invention to the public before he files his patent application, if the information is already in the public, then the patent application will fail.

The novel will not be satisfied if a single disclosure in the relevant industry field (the fact that people from an irrelvent industyr know about it does not invalidate it) has a clear and unmistakable disclosure (the fact that it had to be *figured* out does not invalidate it) his made available  (it will be invalidated by making it available, no need to actually be seen or read) to a skilled a person (if the only person who heard or saw it did not understand what you were talking about then that will not invalidate it). 

The EPC provides an exception when the information was disclosed through an act of breach of confidence, or if the information was disclosed in an official international exhibition, if any of these two happen, the inveotor has six months from that date to make his application for that action not to invalidate his patent.

The requirement for an inventive step: This is a qualitative test. I think of it as the “It must be good enough to be protected” test. The patent will only be granted for inventiosn which are not obvious to a person skilled in the specific industry. If the invention is new, but it was an obvious progression from existing technology then it will not be protected.

Deciding whether an invention involved an inventive step requires the analysis of this step at the priority date, this is problematic because the patent examiner usaully looks at a patent months or even years after the patent was actually filed. So he must disregard all technological advancements that took place throughout that time and decide where there was an inventive step at the priority date. It is usually very easy to say in hindsight that any invention was obvious, so the EPO attempts to use a test called the ‘Problem and Solution Test”, which tries to envision the problem the invention tries to solve and see if this solution has an inventive step.

The problem and solution test consists of the following:

  1.  Indetifying the closest prior art.
  2. Determining the objective technical problem (the technical problem which the invention attempts to solve).
  3. examining whether or not the claimed solution to the problem is obvious for a skilled person in view of the state of the art.
An examiner will also look at secondary considerations IF he is not sure about the answer to the question 3 of the problem and solution test. These secondary considerations include a ‘long felt need’, ‘commercial success’, and ‘unexpected technical effect’. Secondary considerations will not rescue an invention that is obvious, but will be useful in close cases and those in doubt.

The invention must be industrially applicable: This is a requirement that is never unsatisfied because industry is defined as any industry (including agriculture – which is apparently not considered as an industry in France). But anyway, the requirement will only fail for inventions which are impossible to make.

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