Europe is the earliest birthplace of the patent system, from the birth of the world’s first patent law in Venice in 1474 to the successive promulgation of patent laws in various European countries in the 18th and 19th centuries. Due to their similar legislative ideas, they laid the foundation for the coordination of national laws and the ultimate formation of the European Patent Convention. After decades of ups and downs and negotiations, the European Patent Convention was finally signed by 14 European countries in Munich, Germany in 1973, and officially came into effect in 1978. As of now, the European Patent Convention has 38 member states and 2 extended countries.

With the rapid development of technology and the increasing emphasis on intellectual property by governments around the world, the number of European patent applications has been growing year by year. According to a patent data report released by the European Patent Office on March 12, 2020, based on the data from 2015 to 2019 (as shown in Figure 1 below), the number of European patent applications reached a new high of 181406 in 2019, an increase of 4% compared to 2018.

The report also pointed out that the bureau received a total of 12247 patent applications from China in 2019, an increase of 29.2% compared to 2018, ranking first among the top ten patent application countries. The number of applications also surpassed France for the first time, becoming the fourth largest applicant country after the United States, Germany, and Japan. The report also pointed out that Chinese patent applications are mainly concentrated in the fields of digital communication, computer technology, motors, instruments, and energy.

Figure 1: Analysis of European Patent Applications from 2015 to 2019 (Source: European Patent Office Official Website)

Figure 2: Analysis of Source Countries of European Patent Applications in 2019 (Source: European Patent Office Official Website)

In fact, since 2017, China has become the largest import trading partner and second largest export target of the European Union, and the total import and export volume of goods between China and Europe has been continuously increasing. Among all aspects of the development of China Europe economic and trade relations, the intellectual property system is one of the most important links. With the “the Belt and Road” policy advocated by the Chinese government, the pace of Chinese enterprises’ “going out” is also accelerating, and the market is expanding. Among them, Europe has become one of the most important overseas markets for Chinese enterprises. In the past, considering the market scope and patent cost issues, many Chinese companies usually chose to submit separate patent applications in several European countries, with a limited range of countries involved. However, nowadays, Chinese companies are more widely expanding their layout by submitting unified European patent applications to the European Patent Office. On the one hand, this saves time and economic costs for separate applications, and on the other hand, it can also avoid differences in authorization scope and time due to different examination standards in various countries.

Therefore, reasonable patent layout and strengthening intellectual property protection have become the core elements for enterprises to enhance their competitiveness in the European market. So, how to apply for European patents, what are the advantages compared to ordinary national patents, and what are the precautions? Let’s take a look together:

When it comes to cross-border application platforms, people may easily associate them with the well-known Patent Cooperation Treaty (PCT) international application. Although European patents cover relatively fewer countries compared to PCT applications, their essence is very different: PCT is a convenient way to apply for patents. After completing PCT international applications, to obtain specific patent rights, it is necessary to enter various countries and go through the examination process in each country before obtaining patent rights; And European patents are much more impressive, as they are directly accepted, searched, published, and authorized by the European Patent Office. As long as the necessary procedures for the designated country are completed, the patent rights of the designated country are obtained. The specific application and review process is as follows:

1. Patent type, general examination period, and protection period:

The European patent we usually refer to specifically refers to the European invention patent, which is accepted by the European Patent Office. Generally, it takes about 3-5 years from application to authorization, and the protection period is 20 years from the application date. It should be noted that from the third year after the application date until the entry into force of the country, the applicant needs to pay an annual renewal fee to the European Patent Office (if the additional period of six months is not paid in time and missed, the patent application will be considered withdrawn). After the patent authorization announcement, the annual fee will be paid in each effective country.

2. Ways to apply for European patents:

One approach is to apply for a patent in Europe through the Paris Convention (within 12 months from the priority date), and to submit a request for substantive examination within a period of 6 months from the publication date of the Search Report; Another method is to apply for a patent in Europe through the PCT pathway (within 31 months from the priority date), and a request for substantive examination must be submitted before the expiration of the 31 month period in the PCT country segment. It is generally recommended to request substantive examination together with the PCT entry into Europe.

3. Application system for European patents:

The principle of first refusal is adopted in European patents, so the determination of the patent application date is of great significance. According to Article 14 of the European Patent Convention, patent applications can be submitted in any language text, which is beneficial for patent applicants to obtain the application date as early as possible, and then supplement and submit the language text designated by the European Patent Office (English/German/French) within two months after submitting the application.

Applicants can submit European patent applications to the European Patent Office or the competent authorities of member states through four methods: electronic submission, face-to-face submission, mail, or fax (but it should be noted that divisional applications must be submitted directly to the European Patent Office). If submitted by electronic, mail, fax or other means, the application date shall be the receipt date of the European Patent Office; For applications submitted in person or to the automatic mailbox of the European Patent Office, the day of submission is considered the application date.

4. Deadline for claiming priority:

European patent applications can be supplemented with priority claims after filing, but not later than 16 months from the priority date. This provides the applicant with the opportunity to revise and supplement priority information, provided that the European patent application is submitted to the European Patent Office within 12 months from the priority date.

5. Issue of singularity:

The official requirement for singularity is very strict. When the examiner believes that the claims contain two or more inventions that do not have singularity, they will require payment of search fees other than the first invention, or the applicant can choose to file a divisional application.

Attention: If the total number of claims exceeds 15 and the search fee for another set of claims is waived, the excess fee paid at the time of filing the application will not be refunded.

6. Protection effectiveness of European patents:

According to the provisions of the European Patent Convention, a European patent application can designate multiple countries for protection. A European patent can enjoy the same legal effect as a national patent in any or all member states.

7. Invalidation and Objection Procedure:

The European patent opposition procedure should be filed within 9 months from the date of the European patent announcement. If the 9-month opposition period has expired and a third party wishes to challenge the European patent, the invalidation request procedure must be initiated separately in each effective country.

Overall, European patents can provide a relatively simple application process and save costs and time for each country’s separate examination, while also ensuring the high quality of authorized patents. However, the current European patents are actually a set of independent patent rights in each designated member state after they come into effect. In terms of the effective procedures, annual fee payment, rights change, litigation and other procedures, they still need to be independently carried out in accordance with the laws and regulations of each member state. This still poses some complex and high costs for the rights holders. In order to solve this problem, the European Union passed the draft of the European Unified Patent System at the end of 2012, which includes three parts: the European Unified Patent, patent translation and the European Unified Patent Court, aiming to establish and implement unified patent protection. In this system, the European Unified Patent Court is the most critical step. Once a unified patent system is adopted, after the unified patent is granted, a package of lawsuits can be filed in the unified patent court, without the need to sue separately in different countries as is currently the case. Instead, all member countries’ issues under the framework can be resolved in a package. Moreover, after unified patent authorization, it will be regarded as one patent, which will greatly save the cost of paying annual fees separately for European patents in each country, and also make it more convenient for applicants to implement patents within Europe. Although it is currently unclear whether some member states will participate in the unified European patent system due to Brexit and other reasons, according to the question and answer from the European Patent Office on unified patents, it is expected that the unified European patent will start operating by the end of 2021. Of course, the specific progress of the agreement signing and the effective time still need to be followed up on the special section of the European Patent Office’s official website.

Risk and opportunity always coexist. Although under the new patent system, patent authorization and litigation can be resolved as a package, on the other hand, once the patent right of the right holder is declared invalid, it means that it is “completely invalid” within the European scope. Therefore, it is particularly important to seek high-quality patent agency cooperation and conduct thorough analysis when conducting patent search layout. If you have more details about European patent applications, please feel free to contact us by letter or phone.

【 Reference 】
1. News from the European Patent Office regarding application data for 2019: https://www.epo.org/news-events/news/2020/20200312.html
2. News from the European Patent Office on Unified Patents: https://blog.epo.org/unitary-patent-2/
3. European Patent Convention: EPC_16th-edition_2016
4. Baidu Wenku: Review of the Revision of the European Patent Convention