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The Community Patent Convention

The Community Patent Convention

01/07/03

On 3 March 2003, the European patent community moved a step closer toward the long-awaited Community Patent which will comprise a single patent covering all countries of the European Union (EU).

It is currently the aim of the European Commission to adopt a regulation for the Community Patent by the end of 2003 and certainly before 1 May 2004 (the date when new states will join the EU).

The European Patent Convention (EPC) will also have to be revised to enable the EU to accede to the EPC. Ratification of this revised EPC by all EPC member states may take a number of years, and until then, the European Patent Office will be unable to accept applications for Community Patents. The European Patent Office is therefore unlikely to be in a position to accept Community patent applications until 2008.

One of the principal reasons for the delay in moving towards introduction of the Community Patent was the difficulty in reaching agreement on the language regime. However, it has now been agreed that the application has to be prosecuted using one of the official languages of the European Patent Office (English, French or German). Once the patent is granted, translations of the claims must be filed in all EU languages (except if a Member State renounces the requirement for translations into its official language). The cost of the claim translation is to be borne by the applicant.

It will however be possible to file an application for a Community Patent in a language other than English, French, or German, provided that the language is an official language of an EU state. In this case, the cost of the translation of the complete specification for prosecution of the application into one of the above three languages will be borne by the Community Patent system.

A Community Patent Court, to be set up by the year 2010 and based in Luxembourg, will have exclusive jurisdiction for invalidity or infringement proceedings, declarations of non-infringement, proceedings relating to the use of the patent or to the right based on prior use of the patent, requests for limitation, counterclaims for invalidity or applications for declaration of lapse, including requests for provisional measures and also proceedings or claims for damages. Although proceedings will generally be carried out in the official language of the state in which the defendant is domiciled, any official EU language can be chosen as the language of proceedings at the request of the parties and with the consent of the CPC. However, by way of a transitional provision, each Member State shall designate a limited number of national courts to have jurisdiction over Community Patent disputes.

Appeals shall lie with the Court of First Instance of the European Communities (CFI).

The European Patent Office will play a central role in the administration of Community Patents and will be solely responsible for examination of applications and the grant of Community Patents. However, it will be possible to file an application for a Community Patent with the national patent office of a Member State in its working language(s) but applicants will remain free to present their patent applications directly to the European Patent Office.