European Patent Application / EURO-PCT

Simple instructions for European Patent

European patent is an exclusive rights granted by the European Patent Office, having a main seat in Munich (Germany).

The European patent is granted after formality examination, search on prior art, and substantive examination on a European patent application.

The formality examination mainly consists of identification of applicant, appointment of a European patent attorney, payment of official fees, naming an inventor, and if claimed priority, the formal form of priority. Usually, the formality examination is very prompt and does not bring any office action from the side of the European Patent Office, provided the European Patent Attorney handles the European Patent Application filing. The search is conducted on claimed subject matter. Time to time, the European Patent Office may issue a request to choose an invention to be searched or issue a unity problem. Therefore, it is important to involve the European Patent Attorney at pre-filing stage (drafting a European Patent Application), because the mistake may not be remediable/correctable and may result into the refusal in subsequent step of substantive examination. Once the European Patent Office establishes the European Search Report, the Office usually attached a so-called European Search Opinion discussing the patentability of the invention as it is claimed. The European Patent Application is then published and open for inspection by a public. From this stage, anyone can file a third party observation and, to a certain point, influence the substantive examination of the patent proceeding. The applicant may file a request for examination for substantive examination, which contains payment of official fee and reply to the European Search Report and Opinion. During the substantive examination, the applicant is allowed to amend the application, but not over the application as filed, to meet the substantive criteria of patentability in Europe. The substantive criteria, which are heavily scrutinized during the examination, are eligibility of invention, novelty, inventive step, clarity, and unity. If the application is ready to be granted by a European Patent, the applicant is informed on the text intended to grant. The applicant may agree or disagree with the text, in particular the claims (which determine the scope of patent protection). Usually, the proceeding is hold in written. In case of conflict of position between the European Patent Office and the applicant, an oral hearing may be requested. If the applicant wishes to obtain the grant of the European Patent, the applicant has to pay grand and publishing fee and file translation of the claims to other two official languages of the European Patent Office, which are English, German and French.

The third party is not part of the proceeding before the grant of the European Patent. Public may file a third party observation, but they are not a part of the proceeding. If the opponent wants to become a party of the proceeding, an opposition fee must be paid and a notice of opposition must be filed within 9 months from the date of publication of the European Patent in the Bulletin.

The above-mentioned description applies to the filing at the European Patent Office. This procedure is so called a direct European Patent Application filing. However, an international route also allows to the application to file an international application and obtained the patent rights in European via so called, EURO-PCT route. From the procedural point of view, EURO-PCT route is more complicated, and it is recommended to handle the case by the European Patent Attorney.

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