European Union: Ten Facts About A European Patent

Last Updated: 12 March 2018
Article by Oliver Rosenthal

1. A European patent can provide protection in up to 44 countries

A patent can be granted by the EPO to provide protection for an invention in up to 40 European countries:

Furthermore, European patents can also be validated in four more countries, namely Cambodia, the Republic of Moldova, Morocco and Tunisia. In the states for which it is granted, a European patent has the same legal effect as a national patent

2. The EPO is not an EU institution

The EPO is not an EU institution or in any way legally bound to the EU, but an independent public service organisation. Thus, the EPO includes Member states which are not EU member states such as Switzerland and Norway, and even Validation states outside of Europe.

As an independent institution, it is self-financing and covers all expenditures such as operating costs from the fees paid by users for its services, with a 2018 budget of EUR 2.3 billion.

3. A European patent is not a unitary right

A granted European patent does not lead to a unitary right, but a bundle of independent national patents which are enforceable and revocable in each contracting state where protection is requested and the patent has been validated.

4. A European patent application is to be provided in English, French or German.

Applications can be filed at the EPO in any language but a translation must also be filed in one of the official languages of the EPO, which are English, French and German.

After grant, further translations may have to be provided in each contracting state where protection is requested. Requirements are defined in the London Agreement.

States having an official language in common with one of the official EPO languages dispense with translation requirements under the London Agreement. This provision currently applies to France, Germany, Ireland, Liechtenstein, Luxembourg, Monaco, Switzerland and the UK.

The following states require that the claims be supplied in their official language: Albania (Albanian), Croatia (Croatian), Denmark (Danish), Finland (Finnish), Macedonia (Macedonian), Hungary (Hungarian), Iceland (Icelandic), Latvia (Latvian), Lithuania (Lithuanian), Netherlands (Dutch), Norway (Norwegian), Sweden (Swedish) and Slovenia (Slovene).

In the following states, the description is to be supplied in English or in the national language: Denmark, Finland, Hungary, Iceland, Netherlands, Norway and Sweden. In Albania and Croatia, the description has to be supplied in English.

5. There are two ways to start a European patent procedure

A European patent can be applied for directly at the EPO, either as first filing or no later than 12 months after filing another national patent application, or by entering the regional phase of an international application under the Patent Cooperation Treaty (PCT), no later than 31 months after filing a PCT application.

In the following 12 states, the direct national route to obtain a patent under the PCT is closed and a PCT application can only be nationalised via entering the European regional phase: Belgium, Cyprus, France, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Monaco, the Netherlands and Slovenia

6. Number of European patent applications and granted European patents has reached record highs

165 590 European patent applications were filed at the EPO in 2017, which was an increase of nearly 4%, the highest number ever recorded. The total number included close to 98 000 international Patent Cooperation Treaty (PCT) filings which entered the European regional phase in 2017, and approximately 68 000 applications that were filed directly at the EPO under the European Patent Convention (EPC).

Further, the EPO granted a record number of 105 635 patents in 2017, an increase of 10 % from the year before.

7. The EPO is steadily improving timeliness of patent grant procedure

Despite record numbers of European patent applications, the EPO is progressively reducing the total time for an examination procedure. In 2016, the EPO surpassed its target to complete all incoming searches and accompanying written opinions within 6 months of file receipt, with a median value of 5.1 months, which was reduced to 4.8 months in 2017.

The total time for an examination procedure, from receipt of a request for examination to the announcement of the intention to grant a patent, has been reduced from 23.3 months on average in 2016 to 22.1 months in 2017. The EPO's objective is a median examination pendency of 12 months by 2020.

Moreover, the EPO has introduced a streamlined opposition procedure, aiming to cut the overall duration of the opposition procedure to within 15 months by 2020. From 2016 to 2017, the median opposition duration has been reduced from 24.8 to 22.4 months.

8. Not only large enterprises are applying for patents

Contrary to public perception, a significant proportion of applicants are smaller entities. In 2017, 24% of the applicants at the EPO were small and medium-sized enterprises or individual inventors, and 7% were universities and public research institutes.

9. Only a small fraction of European patents are opposed

Anyone may oppose a European patent within a period of nine months from the publication of the grant. Only 3.7% of the patents for which this nine months delay expired during 2017 were opposed.

Moreover, the EPO issued 4 072 opposition decisions in 2017, in 73% of the cases the patents were upheld either as granted or in an amended form.

10. European patents are not restricted to applicants from EPO member states

In 2017, 53% of all 165 590 applications were filed by applicants from non-member states of the EPO. Overall, the most applications originated from the USA with 42 300 filings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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