A European patent is an invention patent that is examined and authorized by the European Patent Office in accordance with the European Patent Convention (EPC) and is valid in its member states. The currently applicable European Patent Convention was revised on November 29, 2000 and came into effect on December 13, 2008, also known as the European Patent Convention 2000 (EPC2000). The headquarters of the European Patent Office is located in Munich, Germany, with branches in The Hague, Netherlands and Berlin, Germany that can handle patent applications.

At present, the member states of the European Commission include 38 member states, namely Albania (AL), Austria (AT), Belgium (BE), Bulgaria (BG), Switzerland (CH), Cyprus (CY), Czech Republic (CZ), Germany (DE), Denmark (DK), Estonia (EE), Spain (ES), Finland (FI), France (FR), United Kingdom (GB), Greece (GR), Croatia (HR), Hungary (HU), Ireland (IE), Iceland (IS), Italy (IT), Liechtenstein (LI), Lithuania (LT), Luxembourg (LU), Latvia (LV), Monaco (MC), Macedonia (MK), Malta (MT), Netherlands (NL), Norway (NO), Poland (PL), Portugal (PT), Romania (RO), Serbia (RS), Sweden (SE) Slovenia (SI), Slovakia (SK), San Marino (SM) and Türkiye (TR) include all 27 EU member states. In addition, as expanding countries, Bosnia and Herzegovina (BA) and Montenegro (ME) also recognize the validity of European patents within their respective countries.

The application process for European patents actually unifies the application and examination procedures of each member state. A European patent can provide patent protection in multiple countries. Of course, each member state generally has its own patent office and its own application and examination procedures, and generally requires applications to be made in its official language.

The maximum protection period for European patents is 20 years from the date of application. The maximum protection period of European patents in the field of medical or plant protection varieties can be appropriately extended.

European patent applications must meet the requirements of novelty, creativity, and utility. In addition, European patents must also meet the requirement of singularity.

2. Application channels

The most common way for applicants whose residence or place of business is in China to enter the European Patent Office for their inventions is through PCT (Patent Cooperation Treaty). The deadline for PCT applications to enter the European Patent Office is 31 months from the priority date.

In addition, priority can also be claimed through the Paris Convention for the Protection of Industrial Property, which means submitting an application to the European Patent Office within 12 months of submitting a Chinese application.

Finally, applicants in China can also submit their applications directly to the European Patent Office, but the Chinese government requires that inventions made domestically in China must undergo a confidentiality examination before applying for a patent abroad.

3. Application Procedure

The application process for European patents can be roughly divided into the submission stage, substantive examination stage, authorization stage, and effectiveness stage. According to the different ways of applying for a European patent, the materials required to be submitted in the submission stage are also different, and the procedures for the other three stages are the same.

3.1. Submission stage

Let's take the most common PCT application for entering Europe as an example. Applicants in China generally submit their PCT applications in Chinese, and the China National Intellectual Property Administration of China will carry out the search in the international stage.

If the applicant does not have a domicile or main place of business in a member state of the European Patent Office, their PCT application must be represented by a qualified agent in Europe (A133 (2), A134 EPC) when entering the European Patent Office. However, the applicant may enter the European Patent Office on their own within 31 months from the priority date, but thereafter the European Patent Office will require the applicant to select an agent within a two month period and have the agent represent them in all procedures after entering the European Patent Office (R163 (5) EPC). If a qualified agent is not selected within the prescribed period, the application will be rejected by the European Patent Office (R163 (6) EPC).

Generally, applicants in China need to provide us with the following materials:

Applicant's English name and address

Application number or publication number of PCT application

Translation of PCT applications into English (or German, French); In case of any modifications to the PCT application documents, an additional translation of the modified application documents must be provided

Authorization letter signed by the applicant

If the PCT application enjoys the priority of a domestic application in China, a copy of the search report of the domestic application in China (no translation is required, and no copies of the comparative literature listed in the search report are needed); If the Chinese domestic application has not received the search report from the China National Intellectual Property Administration of the People's Republic of China at the time of entry into the European Patent Office, a copy of the search report shall be submitted to the European Patent Office immediately after receiving it.

Among them, in the case of claiming priority, if a copy of the search report of the domestic application in China is not submitted when entering the European Patent Office, the European Patent Office will invite the applicant to provide the copy within two months of receiving the invitation at the beginning of substantive examination, or explain that the search report of the domestic application in China has not been received yet.

When entering the European Patent Office, the deadline for initiating substantive examination is within six months after the international search report is published. The deadline for PCT applications to enter the European Patent Office is 31 months from the priority date. If the six-month deadline for filing an examination upon entry into the European Patent Office has passed, substantive examination must be filed upon entry into the European Patent Office.

Before conducting a supplementary search, the European Patent Office will notify the applicant of the opportunity to modify the application documents and use the modified application documents as the basis for the supplementary search. But the content of the modified application document cannot exceed the scope disclosed in the original application document. When entering the European Patent Office, it is possible to explicitly declare the waiver of this right in order to expedite the application process. At this time, the European Patent Office will directly conduct supplementary searches based on the application documents submitted at the time of entry.

3.2. Substantive examination stage

After receiving the supplementary search report from the European Patent Office, it can be considered as entering the substantive examination stage. The supplementary search report is accompanied by the search opinion of the European Patent Office's search department.

PCT applications generally initiate substantive examination when entering the European Patent Office, that is, substantive examination is initiated before obtaining a supplementary search report. In this case, the European Patent Office will invite the applicant to explain whether the application process needs to continue, and provide the applicant with an opportunity to comment on the supplementary search report and make corresponding modifications to the application documents. If the search opinion of the European Patent Office is negative, the applicant must provide comments and/or modifications within six months of receiving the invitation.

In the substantive examination stage, the European Patent Office mainly focuses on whether the application has novelty, inventiveness, singularity, and whether the disclosure of the invention in the application documents is clear. In response to the opinions of the European Patent Office, applicants can comment on the opinions of the European Patent Office and make corresponding modifications to the application documents.

The applicant may request the European Patent Office to conduct an oral examination before refusing authorization. In this case, the European Patent Office will issue an invitation letter specifying the time and location of the oral examination, and explain in the invitation letter the detailed reasons why the applied invention does not meet the authorization conditions. In addition, the invitation letter for the oral examination will also specify the deadline for the applicant to submit written opinions and modifications before the oral examination.

In the event that the European Patent Office refuses authorization, the applicant can still file an appeal.

3.3. Authorization stage

When the European Patent Office considers that the applied invention meets the conditions for authorization, it will issue a notice of intent to grant authorization and attach the specification, claims, and drawings prepared for authorization. After receiving the notification of authorization intention from the European Patent Office, it can be considered as entering the authorization stage.

If the applicant does not agree with the text prepared by the European Patent Office for authorization, they need to make modifications to the text within the prescribed period and explain the reasons for the modifications. If the European Patent Office agrees to the revised text, it will issue a new notice of intent to authorize and attach a new prepared authorization text. If the European Commission does not agree with the revised text, the substantive review process will continue.

If the applicant agrees to the text prepared by the European Patent Office for authorization, they need to provide translations of the claims in the other two official languages of the European Patent Office within the prescribed period.

3.4. Effective stage

After the authorization announcement of a European patent, it may be necessary to translate the claims or the entire patent document in order for it to take effect in the member states. However, in Germany, the United Kingdom, France, Switzerland, Liechtenstein, and Monaco, translation is not required due to the London Agreement, so the authorization takes effect directly in these countries. In addition, if the patent text is in English, it can also take effect directly in Ireland.

In other countries, if translation of patent claims and/or specifications is required, the deadline for submitting the translation is generally within three months from the date of the European patent grant announcement, with only a few member states allowing a slightly longer deadline. The entry into force procedures of European patents in these member states (such as translation and payment) have their own regulations (A65 EPC) in each member state.

4. Application fee

Starting from April 1, 2012, the European Commission began to apply new fee standards, and its official fees increased by approximately 5%.

During the application submission stage, the official fee for electronic submission of European or international applications to enter Europe is 115 euros. The official fee for requesting retrieval is 1165 euros. When the international application submitted by the Chinese applicant enters Europe, because the international search report is issued by the China National Intellectual Property Administration of China, according to the relevant regulations of the European Patent Office, the search fee will be reduced by 190 Euros, that is, to 975 Euros. The designated fee is 555 euros, and the review fee is 1555 euros. When the application documents (abstract, specification, claims, drawings) exceed 35 pages, an additional fee of 14 euros per page will be charged starting from page 36. When the number of claims exceeds 15, the cost for each item from item 16 to item 50 is 225 euros, and the cost for each item from item 51 onwards is 555 euros.

In the substantive examination stage, there is generally no official fee incurred. If there is an appeal, the appeal fee is 1240 euros. The authorization and announcement fee during the authorization phase is 875 euros. When entering into force in member states, each member state has its own special regulations for payment.

The payment deadline for European patent annual fees depends on the application date (A86 (1) EPC), not the priority date or the date of entry into Europe. From the third year onwards, an annual fee is required to be paid to the European Patent Office until the annual fee for the year in which the European Patent Authorization Notice is issued (A86 (2) EPC), which is only paid to the European Patent Office. Afterwards, the annual fee shall be paid to the member states where the European patent takes effect (Art141 (1) EPC), and each member state has its own regulations on the level and method of paying the annual fee.

5. Legal status inquiry

Many Chinese applicants do not have a clear distinction between the concepts of "designated country" and "effective country". Designated country refers to the country where the applicant "wishes" to obtain patent protection, while effective country refers to the country where the European patent granted by the European Patent Office "actually" obtains patent protection in these countries. One important reason for this difference is that European patent applications can grant certain rights to applicants in designated countries, such as the possibility of obtaining temporary protection in designated countries after the European patent application is published. In addition, it also involves whether domestic patent applications in designated countries can be considered as conflicting applications. 'Designation' is conducted before the European patent is granted and requires payment of a designation fee. And 'effectiveness' is carried out after the European patent is granted, and the payment and translation regulations are determined by each member state of the European Patent Office. After a European patent takes effect in a country, it can grant the patentee the same rights as domestic patents in that country. 'Designated' is a necessary but not sufficient condition for 'effectiveness'.

After authorization, whether a European patent is still valid in the effective country should be checked at the patent office of the effective country (such as through its provided query system). The "INPADOC data" system of the European Patent Office only guarantees the accuracy of the legal status before the European patent is granted, but the European Patent Office declares that it does not guarantee a comprehensive and timely description of the legal status in the effective country after the European patent is granted.

The statement of the European Patent Office is easy to understand: the authorization process of European patents is the responsibility of the European Patent Office, so the European Patent Office can comprehensively and timely grasp the legal status before authorization. The payment of annual fees after authorization and whether they are invalidated through invalidation procedures are managed by each effective country. Only when the effective country fully and timely informs the European Patent Office of relevant information, can the European Patent Office have a comprehensive and timely understanding of the legal status of a European patent in the effective country. As the European Patent Office currently has 38 member states, it can be imagined that it is difficult for the "INPADOC data" system of the European Patent Office to provide comprehensive and timely legal status information in the effective countries after European patent authorization.

6. Objections, Restrictions, and Invalidation Procedures

After being granted, European patents grant the same patent rights to the patentee as domestic patents in the effective country. European patents may be restricted or invalidated in the following ways after authorization:

Through the unified objection procedure of the European Commission (Art. 99 EPC). The result of the objection is valid for all member states of the European Commission. Anyone can raise an objection within nine months of the authorization announcement.

The patentee may apply to the European Patent Office at any time to restrict or revoke the patent (Art. 105A EPC). The final decision on restriction and revocation shall be made by the European Commission.

Partially or completely invalidated through invalidation procedures in the effective country. Invalid results are only valid for the effective country.

In opposition and invalidation procedures, common reasons for attacking patents that do not meet the conditions for authorization include: European patents do not meet novelty, creativity, or require protection beyond the scope disclosed in the original application.

When examining a European patent application, the European Patent Office does not consider it as prior art for conflicting patents or conflicting applications within a designated country that have priority but are published after the priority date of the European patent application. But after the European patent is granted, Art. 139 (2) EPC stipulates that such conflicting applications have the same impact on the portion of the European patent in that country as they do on domestic patents in that country.

Taking Germany as an example, the invalidation procedure for the German portion of European patents was initiated at the Federal Patent Court located in Munich. When examining the novelty of the German portion of European patents, conflicting German patent applications will be considered as prior art considerations, and will not be considered when examining creativity (German Patent Law § 3 (2) and § 4). In addition, in some European countries such as Germany, technological inventions can also apply for utility model protection. According to the provisions of Art. 140 EPC, Art. 139 EPC also applies to utility models. Therefore, the impact of conflicting German utility models on European patents is the same as on German patents. According to § 3 (2) and § 4 of the German Patent Law, conflicting German utility models are not considered as prior art when examining the novelty and inventiveness of German patent inventions. Therefore, when examining the novelty and inventiveness of the German portion of European patents, conflicting German utility models are not considered as prior art.