Let's briefly review EPC 2000

Lorenzo Litta

Only two days to the entrance into force of EPC 2000. I would briefly review with all of you the most interesting aspects of this convention looking for your comments and additions.

The EPC 2000 does not introduce any major changes in substantive patent law, except changes concerning novelty, industrial applicability and priority rights. The EPC 2000 is however a comprehensive revision introducing "a considerable number of smaller amendments".

It is the result of a diplomatic conference held in Munich in November 2000 to revise the Convention on the Grant of European Patents of 5 October 1973, amongst other things to integrate in the EPC new developments in international law, especially those of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) and of the Patent Law Treaty, and to add a level of judicial review of the Boards of Appeal decisions.

Greece deposited its instrument of ratification on December 13, 2005, and was the fifteenth Contracting State to ratify or accede to the EPC 2000. In addition, since not all the contracting states had deposited their instruments of ratification or accession by September 30, 2007, the EPC 2000 will enter into force on December 13, 2007.

A Contracting State that will not have ratified or acceded to the EPC 2000 at the time of its entry into force, will cease to be party to the EPC as from that time.

Under the EPC 1973, in order to preclude double patenting, the prior art effect of a first European patent application (a so-called "conflicting patent application") filed before the filing date of a second European patent application, but published after said filing date, on the second application is limited to the designated states in common.

The requirements to obtain a date of filing (for a European patent application), laid out in Article 80, have been amended. A reference is now made to the Implementing Regulations, which are now in line with "the wordwide standard laid out in Article 5 of the Patent Law Treaty 2000 (PLT)". In particular, Rule 40 EPC 2000 is relevant. There is no requirement anymore to file claims to obtain a date of filing. In addition the description may be filed in any language. Among the requirements, a reference to a previously filed application may also be used to obtain a date of filing.

The priority rights are extended to filing in or for any member of the WTO, in addition to any state party to the Paris Convention for the Protection of Industrial Property. This amendment has been made to align the European Patent Convention with Article 2 of the TRIPS Agreement.

Article 105a(1) EPC 2000 introduces a procedure for centrally limiting or revoking a European patent. A request for limitation or revocation may be filed at any time throughout the term of the European patent.

Article 112a EPC 2000 introduces a procedure for contesting the decisions of the boards of appeal by filing a petition for review. The petition for review can only be based on a fundamental procedural defect and its purpose is not to obtain a review of the application of substantive law.