Talk:European Patent Convention/Archives/2013

Layout

Made a couple of edits ( at Edcolins's invitation) to deal with one or two inaccuracies. Also added a bit more info where I thought of it. Ultimately this is a tricky article to write as the EPC itself is nearly 400 pages long so a paraphrase and explanation of every provision could descend into absurdity. Perhaps we need to agree on some key headings that we can then populate and edit? I've thrown some into the mixer, but I'm happy to discuss this further.--Baggie 12:25, 13 May 2004 (UTC)

You're right, we first need to sort out how to divide the matter into articles and sections, and then we can just populate it. At the moment, there are three main articles: European Patent Convention, European Patent Organisation and European Patent Office (I am not satisfied with this). They are separate concepts, but they all relate to the European patent system.

• 1. Here is a first layout I propose: European patent system (acting only as a gateway to the different articles): a main article with a general introduction and three brief sections on the "European Patent Convention" first, the "European Patent Organisation" (with subsections on the "EPOff" and the "Administrative Council of the EPOrg") and the "Contracting States to the EPC/Member States of the EPOrg". Then articles on (making sure there are no (or not too many) redundancies):
  • European Patent Convention
  • European Patent Organisation
  • European Patent Office
  • Administrative Council of the European Patent Organisation
  • Software patents under the European Patent Convention
  • Opposition procedure under the European Patent Convention
  • Appeal procedure under the European Patent Convention
  • ...
• 2. A second possible layout is: Make the article about the European Patent Convention the central one.
• 3. A third possibility is one central article on European Patent Organisation (with redirects from European Patent System, European Patent Office and European Patent but not from European Patent Convention that deserves a separate article)..

What do you think about these possibilities? I would prefer the third one personally but just wish to have another opinion on this... --Edcolins 21:12, 13 May 2004 (UTC)

Happy with your suggestion 3 as long as I don't have to do it! I agree that there is no need for a multiplicity of articles here.--Baggie 10:11, 14 May 2004 (UTC)

It's in my to-do list now...--Edcolins 22:47, 14 May 2004 (UTC)

Done. --Edcolins 20:23, 16 May 2004 (UTC)

Greece ratifying the EPC 2000

hasn´t 15 states already deposited their instruments of ratification or accession meaning that the EPC2000 will go into force 2007-12-13? Greece did their thing on 2005-12-13. See: http://patlaw-reform.european-patent-office.org/epc2000/status/ Benkeboy 15:20, 30 January 2006 (UTC)

Yes, thank you for this! --Edcolins 19:46, 30 January 2006 (UTC)

Singer/Stauder

(in response to a question on my talk page)

Singer/Stauder wrote:

"The view that, after grant, a European patent breaks up into a bundle of national patents in designated Contracting States may appear plausible, but it is incorrect both in law and systematically"

because the letter of the law neither mentions nor implies any strict, literal "breaking up". I mean that there is no article in the EPC that literally provides that "the European patent breaks up into national patents" or "the European patent becomes a group of national patents" (see in contrast the subtle wording Art. 2(2) EPC).

I think the EPC was written in this way because a European patent may be centrally revoked during an opposition proceeding. Although the notice of opposition needs to be filed during the nine-month opposition period, the opposition proceedings as such may last several years. At the end of the opposition proceedings, possibly even after an appeal, the result of the opposition proceedings has a direct impact on all the national "parts" of the European patent. So, a European patent may be centrally revoked or amended (maintained in an amended form) several years after grant. This implies some sort of unitary character after grant.

I think it is correct to write "a European patent becomes equivalent to a group of independent nationally-enforceable, nationally-revocable patents" but it wouldn't be correct to write "a European patent becomes a group of independent nationally-enforceable, nationally-revocable patents". --Edcolins 14:52, 31 July 2006 (UTC)

Thanks for your edits and comments. Golly, I think we're getting there. How about "at grant, a European patent divides into a group of independent nationally-enforceable, nationally-revocable patents, subject to revocation and/or narrowing as a group pursuant to the unified opposition procedure"? I think we're coming to the conclusion that the national daughters really are as distinct as ordinary national patents, with this single exception. Boundlessly

Yes, that's almost alright to me, I would just replace "divides into" by "becomes equivalent to" so as to read: "at grant, a European patent becomes equivalent to a group of independent nationally-enforceable, nationally-revocable patents, subject to revocation and/or narrowing as a group pursuant to the unified opposition procedure". --Edcolins 07:09, 1 August 2006 (UTC)

Cleanup "Enforcement and validity"

I think the section on "Enforcement and validity" needs cleanup. In particular, the content of the portion about the validity (currently fifth paragraph of said section) is partially redundant with the content of the section on "Substantive patent law". Article 138(1) EPC explicitly refers to Article 52(2) and (3) EPC, enumerating what is not considered to be an invention. It is not necessary to enumerate twice what is considered not to be an invention, in both sections, first for explaining Art. 52 and afterwards for explaining Art. 138(1) EPC. This needs to be merged in one section, I suggest in the first section Substantive patent law. One first cleanup step would be to replace the three first bullets (in the 5th para. of "Enforcement and validity"):

• subject matter which is not regarded as inventions (Article 52(2) and (3) EPC) incl.
  • Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body (Article 52(4) EPC
  • inventions that violate the public order EPC Art. 53(a)
  • plant or animal varieties or essentially biological processes for the production of plants or animals EPC Art. 53(b)
• novelty (Article 54 EPC) (The state of the art is further defined in Art. 54(2) -(5), and a limited grace period is specified in EPC Art. 55, but this is only relevant in cases of breach of confidence or disclosure of the invention in a recognised international exhibition).
• inventive step (Article 56 EPC)

with a reference to the section on "Substantive patent law". Cheers. --Edcolins 07:20, 30 August 2006 (UTC)

Agreed. To the extent the two lists set forth the same grounds, the two lists should be combined, and "Substantive Law" is the better place to do it, with a cross-refernece back in the "Enforcement and Validity" section. Do you want to take care of it? In particular, be sure that the subbullets under "not an invention" are indeed the things that are "not an invention" in Art. 52, not the things that are listed there now. Boundlessly 15:59, 3 September 2006 (UTC)

I took care of it. --Edcolins 09:52, 7 September 2006 (UTC)

"national grants of a European patent" -> "national parts of a European patent" "a European patent in a Contracting State"

I changed "grant(s)" by "part(s)" in the expression "national grants of a European patent". "Parts" is more common. See for instance: Google test. Google returns 16 hits for "national parts of a European patent" [1], none for "national grants of a European patent" [2]. I hope this evidence is sufficient. Please discuss it before reverting if you plan to do so. Thanks. --Edcolins 13:41, 31 August 2006 (UTC)

I don't have any feeling one way or the other, so long as "part" is used somewhere in the authoritative text itself. There are lots of uses of the word "grant" in the treaty, to refer to the individual national rights; is there at least one use of the word "part" in the official English documents? (Note that all the of the references to "part" in your Google search are from German or Scandanavian jurisdictions, none from native English speakers (even the Freshfields hit is from the German side of the firm), and none are from any authoritative document.) It seems this may be a translation quirk, not a term in genuine use? One or two is enough for me; I just don't want to coin a totally new term out of thin air when the treaty uses one perfectly good one. Boundlessly 15:53, 3 September 2006 (UTC)

I have a similar concern to Boundlessly about the use of "national parts of a European patent". I would not object to the use of a term just because it was not in the Convention if it had entered into sufficiently common and consistent usage (cf "international phase" in the PCT) but I don't think that's the case here. On the other hand, "national grant" would be much more misleading as it implies that the grant is done at a national level rather than the European grant having an effect at the national level. As we've been through before, the EPC is extremely clear that grant of a European patent is done by the EPO (Article 4(3) EPC is the direct statement of this and other Articles would not make sense any other way). The only references to national grant in the Convention are in Article 2(2) EPC, which compares a European patent granted for a State to a national patent granted by the State, and Article 135 EPC, which is where the European application is specifically converted to a national application, which can only happen in very limited circumstances.

The drafters of the Convention probably really did think of a European patent as being a unitary entity (as argued by Singer/Stauder) even though it is divisible in terms of ownership, text and even existence and has a non-unitary effect. Consequently, even though this view is, in practice, unhelpful and confusing (or "rather theoretical" as it is referred to in the current Notes to the article), we are left with no proper term for the "parts". Such terms exist in individual national laws (eg "European patent (UK)") but not as a commonly applied term, whether directly based on the Convention or through consistent usage.

The best term that I can find a direct basis for in the Convention would be "a European patent in a Contracting State" or "a European patent in a Contracting State for which it is granted" (Articles 2(2) and 39). Other similar terms are grant of a European patent "in respect of" a Contracting State (Articles 61, 64) or "for" a Contracting State (Articles 2(2), 3, 63(3), 97(2), 142), but these relate more to the action of grant than the patent which is created. Whatever term is used, it will probably need a better definition and, if necessary, an indication that it is terminology adopted merely for the convenience of the article and not consistently used elsewhere. Tim B 11:17, 4 September 2006 (UTC)

Thank you for your contributions to this debate. I now suggest to simply use "a European patent in a Contracting State" or "the European patent in each Contracting State". The expression sounds relatively readable and understandable to me and is in agreement with the authoritative text. A footnote could be added where the first occurence of the expression appears in order to explain that, although there is no consistent usage of a particular expression to refer to the European patent in a particular Contracting State, the article uses the expression which is considered to be the most consistent with the authoritative text. What do you think? --Edcolins 09:45, 5 September 2006 (UTC)

sounds good to me. Boundlessly 23:39, 6 September 2006 (UTC)

I have reworded the article accordingly. --Edcolins 08:45, 7 September 2006 (UTC)

Footnotes and style

See Wikipedia:Help desk#Footnotes and style for understanding why I changed the references to legal provisions to footnotes. Please do not revert as it would make the style inconsistent within the article. --Edcolins 12:31, 7 September 2006 (UTC)

Removed unsourced statement

I have removed this:

"The EPO is reluctant to use the public policy exceptions as it believes that this is best left to national law - being granted a patent should not be viewed as an endorsement of one's commercial plans."

Please provide reliable sources. Thanks. --Edcolins 20:11, 4 April 2007 (UTC)

Norway

Should the accession of Norway on 1 January 2008 (see here) be included on the list, or should the edit wait until it actually happens? Pearcedh 12:36, 15 June 2007 (UTC)

Thanks a lot. I have just added that Norway was expected to become Contracting State on January 1, 2008. It is not clear to me which obstacles remain, but still the ratification appears to be "expected". Any other opinion? --Edcolins 18:34, 15 June 2007 (UTC)

Singer/Stauder qualifies as a reliable source

In response to this edit summary: "where is evidence that Singer/Stauder are reliable?" in [3].

Singer & Stauder, The European Patent Convention - A Commentary is not only a reliable source, it is a monumental, in-depth legal work on the European Patent Convention. The evidences are there:

• cited by the Boards of Appeal of the EPO in many decisions [4]
• cited by the Bundesgerichtshof (Federal Court of Justice of Germany), for instance in [5]
• cited by Swiss civil courts, for instance in [6]
• cited as reference by the Irish Patent Office [7]
• review in the epi Information, the journal of the European Patent Institute, the professional association of European patent attorneys.

"Apart from mentioning the omission of an index to Rules which have been considered by the Boards – a surprising omission in an encyclopaedic book of this character – it is very difficult to oblige, such is the care which has clearly been devoted to the content and the production of this work. It is one exactly pitched, it seems to me, to be of great value to busy practitioners seeking to know the state of the law as perceived by the Boards." (p 111 of [8])

• review by the IPKat, according to which it "... provides an analytical and well-sourced account of the Convention... it is not merely a monumental legal work..." [9]

--Edcolins 21:05, 15 November 2007 (UTC)

EPC in the constituent parts of the Netherlands Antilles after October 10, 2010?

Can we say something about whether the EPC is nowadays in force in the constituent parts of the Netherlands Antilles? If so, perhaps this could be added in the footnote... --Edcolins (talk) 18:55, 23 April 2013 (UTC)

According to the Official Journal of the European Parent Office the answer appears to be yes. — Blue-Haired Lawyer ^t 21:00, 23 April 2013 (UTC)

Also according to the Dutch government here, which is also consistent with the general doctrine that the Kingdom of the Netherlands is the subject of international law, and that the dissolution of the Netherlands Antilles merely constituted a change in the internal arrangements of the Kingdom that had no effect to where conventions are applicable; and consistent with the change of the patent law here… L.tak (talk) 21:46, 23 April 2013 (UTC)