European Patent Law

European Patent Law

Towards a Uniform Interpretation

Stefan Luginbuehl

In his detailed study, Stefan Luginbuehl critically examines the latest efforts to establish a common European and EU patent litigation system and suggests possible alternatives to such a system.

General introduction

Stefan Luginbuehl

Subjects: law - academic, comparative law, european law, intellectual property law

Extract

The European Patent Convention (EPC) is a regionally limited international treaty1 which is in force for currently 38 European states. It established the European Patent Organisation2 and a system of law, common to the EPC contracting states, for granting patents for invention3, including both substantive and procedural law4. This system co-exists with the national patent systems of the EPC contracting states. The European Patent Organisation has the task of granting patents based on this legal system5. The EPC contracting states have thus transferred the sovereign right to examine a patent application and to grant a patent with effect for their territory to the European Patent Organisation. However, they remain responsible for the enforcement of those patent rights. The European Patent Office (EPO), as an organ of the European Patent Organisation, carries out the task6 of granting these so-called ‘European patents’, if the legal requirements of the EPC are met. Article 2 (2) EPC provides that the European patent should, in each of the contracting states for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that state, unless otherwise provided by the EPC. Furthermore, Article 64 (1) EPC makes it clear that a European patent must confer on its holder the same rights in each of the contracting states in respect of which it is granted as would be conferred by a national patent granted in that state. As a consequence of this construction the European patent is...