The procedure of granting before the European Patent Office (EPO) is a procedure, administrative procedure, which includes the filing of a European patent application from the search report, the publication of the application, its substantive examination and grant of patent, or the denial of the application, in accordance with the law of the European Patent Convention (EPC). The grant procedure is undertaken by the EPO under the supervision of the Administrative Council of the European Patent Organization. The patent granted in accordance with the EPC is called European patent .
In other words, the grant procedure before the EPO is a procedure that leads to the granting of European patents or refusals to grant European patents. The procedure begins with the submission of an application and ends with a European patent application or a refusal of a patent application by the EPO, or withdrawal of the application by the applicant, or withdrawals it considers. The prosecution of European patent applications to grants usually takes several years.
Video Grant procedure before the European Patent Office
Primary procedural steps
Archiving
European patent applications may be filed in the EPO in Munich, Germany, in The Hague, the Netherlands, in Berlin, Germany, or "if the law of a Contracting State allows, in the office of a central industrial property or other competent authority of that State." This last provision is important in some countries. For example, in the United Kingdom, it was previously necessary to obtain permission for all inventions but it is now only forbidden for the British population to apply for foreign patents for invention in certain sensitive technical fields without obtaining permission through the Intellectuals of the United Kingdom. Office Property first. European patent applications can not be filed legally in EPO in Vienna, Austria.
Within a month of filing an application, filing fees and search fees must be paid. The additional cost may also depend on the size of the application and the number of claims. That is, if the application consists of more than 35 pages, additional fees must be paid (from 14 Euro, per February 2014) for the 36th and every subsequent page. Furthermore, if the app contains more than fifteen claims at the time of filing, the claim fee will be due. Beginning in February 2014, the claim fee of 225 Euro will mature on the 16th and every subsequent claim up to the 50th limit, and the claim fee of 555 Euro for the 51st and any subsequent claims.
European patent applications may be filed in any language, in accordance with Article 5 of the Patent Law Treaty (PLT). However, if the application is submitted in a language other than one of the three official languages, namely English, French, and German, the translation must be submitted to one of the official languages ​​within two months of the filing date. The official language of archiving (or translation) becomes "process language" and is used by EPO for communication.
Formality check
Examination of whether the requirements for the filing date and other formal requirements are fulfilled by the EPO, in accordance with Article 90 of the EPC. If the filing date can not be given, the application is not handled as a European patent application. If a European patent application has been granted the filing date, but if there are other formal flaws, the applicant is offered an opportunity to remedy this deficiency. If the deficiency is not corrected, the European patent application is denied, unless there are different legal consequences.
The proceedings can be conducted in the Admission Section, to allow the applicant to be heard on a matter involving the requirements of the formalities.
Publications and provisional rights
The European patent application shall be issued as soon as possible "after the expiration of eighteen months from the date of filing or, if priority has been claimed, from the priority date", or "at the request of the applicant, before the expiration of that period". Although initial publication of European patent applications may be requested, there is no provision in the EPC that will allow postponement of publication. There is indeed excessive public interest in timely publishing of applications.
Starting from the publication, European patent applications may grant to the applicant some provisional rights in the designated states in the application. These rights include at least the right of an applicant to "claim reasonable compensation in the circumstances of anyone who has used the invention in that State in the circumstances in which that person will be liable under national law for national patent infringement." However, in relation to some states, a claim translation is required for provisional rights to take effect.
Search
The EPO Search Division creates a search report, named "European search report", on a claim basis, "with regard to any description and image". European search reports made for patent applications are sent to the applicant along with copies of the documents cited.
- "Search is an essential element of a grant procedure, designed to identify the prior art relevant to the application.The goal is to enable it to determine, on the basis of the documents mentioned in the search report, whether and to what extent this invention can patented (...) The knowledge of the prior art forms the basis for examination of the application by the checking division.This is also important for applicants, giving them a basis for deciding whether to proceed demanding their application and asking them to check.Finally, it is also important to public and especially to competitors, enabling them to get an idea of ​​whatever coverage coverage might be provided. "
In exceptional cases, a statement that no search report can be performed is issued, for example because carrying a meaningful search is not considered possible by the Search Division.
Prior to the search, communication between the search division and the applicant was not foreseen, before April 1, 2010. However, under Rule 62a and 63 EPC, if there is more than one independent claim per claim category (and if Rule 43 (2) EPC is deemed not met ) or if the search division assumes that it is not possible to perform meaningful searches on the claimed subject, communication between the search division and the applicant is possible. However, according to Rule 137 (1) EPC, no changes to the application may be made before the search "unless otherwise specified".
Along with search reports, search opinions are also created. Search opinions and search reports form an expanded European search report. Prior to April 1, 2010, responses to search opinions are optional. But now, under the new Regulation 70a EPC, answers to search opinions are mandatory, within six months "after the date on which the European Patent Bulletin mentions the publication of the European search report" (which is also the deadline for requesting an examination). If no answer is submitted to the search opinion, the app is considered withdrawn. Search opinion is the action of a conventional office with a certain period of time to respond.
Country determination and inspection request
All States Parties to the EPC at the time of applying for a European patent are deemed designated in the request to obtain a European patent, which is at the time of filing the application. The flat appointment fee should then be paid within six months from the date when the European Patent Bulletin mentioned the publication of the European search report.
Under Article 94 (1) of the EPC and Rule 70 (1) of the EPC, an inspection request must also be made within six months from the date on which the European Patent Bulletin mentions the publication of the European search report. The examination fee also matured at that time. If no check request is made, the request is considered withdrawn.
Substantive checks
A substantive examination of a European patent application includes a patenting examination of the claimed invention, namely whether the invention is not excluded as a non-patent subject by the policy, whether this invention is new, involves inventive steps, and is susceptible to industrial applications. In addition, the invention should be sufficiently disclosed in the application, and the claim should be clear and concise.
Unless the application is directly ready for delivery, communications under Article 94 (3) EPCs are issued by the Examining Division and notified to the applicant or designated representative. In the communication, the Examining Division invites the applicant to answer within a certain period of time, by correcting "recorded flaws and [changing] descriptions, claims and drawings", if necessary. If an amendment is filed, the amendment shall not extend the contents of the application as submitted, or, in other words, no additional material shall be added. In that context, the applicant is the master of his own application that the decision to change or not, and how to amend the application, is the decision of the applicant only (though the Examining Division may apply pressure to amend the proceeds).
During the examination, an oral process may be performed on the order of the EPO itself or at the request of the applicant. They are held in front of the Examining Division itself, in Munich or The Hague, and are not uncommon, in contrast to oral proceedings in the opposition, which are general unless specific circumstances apply. The right to oral process is a specific and codified part of the procedural right to be heard. Decisions are usually given at the end of the oral process.
The decision by the Examining Division to reject a European patent application, like any other final decision of the first division, may be appealed.
Communications under Rule 71 (3) EPC and grant, or rejection
If the Examining Division reaches the conviction that the European patent application meets all EPC requirements so that European patents may be granted, it issues communications under Rule 71 (3) EPC. By issuing such communications, the Examining Division informs the applicant of the intention to grant a patent on the basis of the claimed application. Such claims must then be translated in the other two official languages ​​of the European Patent Office, and fees for grants and issuance shall be payable. If the applicant pays the fees for the grant and issuance and the claim translation file in due course, he is deemed to have approved the text intended for the grant. Otherwise, European patent applications are deemed withdrawn. The deadline for paying fees for grants and issuance, and for submission of a claim translation is four months. This time limit can not be renewed.
The decision of the Examining Division to grant European patents is valid on the date on which the mention of the grant is published in the European Patent Bulletin. The Examining Division is then bound by its final decision on the application, which can be set aside only after the appeal is allowed and allowed. The decision to grant an ending inspection procedure. The published patent text may remain consistent with the text approved by the applicant if an error occurs while preparing for publication.
Conversely, if the Examining Division considers that the application does not meet the provisions of the European Patent Convention, the application is denied. As mentioned above, as with any other first instance decision that terminates the process, the decision to reject the application may be appealed. If an appeal is filed against a rejection decision and if the Examining Division deems that the appeal is acceptable and properly established, the Examining Division shall revise its decision. This is what is called an "intermediate revision".
After giving
Once awarded, the European patent effectively becomes available as a national patent group in each designated State Party, and European patents may be enforced on a state-by-state basis. Subsequently, after a 9-month opposition period is terminated, a third party must institute a revocation process in each country where they wish to annul European patents.
After a European patent is granted or more accurately within three months from the date of award, the European patent must also be translated in the official language of each country in which the patent desires patent protection - no translation is not required by the application of the London Agreement. If the European patent translation is not given to the national patent office within the prescribed time limit, the patent shall be de null off ab initio in the country concerned.
Maps Grant procedure before the European Patent Office
Additional considerations and special cases
Renewal fee
Renewal fees are payable to the European Patent Office in connection with a pending European patent application in respect of the third year from the date of filing. These fees are payable prior to the year in which they are due (in such a way that the extension fee for the third year falls due to two years from the date of filing) and due on the last day of the month containing the filing date warning.
Observations by third parties
Upon the publication of European patent applications, any person may submit observations concerning patents of the invention which are the subject of the application or, after being granted, the patent subject. This is a form of public participation in patent application examination. A person who submits observations during the inspection process is not a party to the process. This primarily means that the person is not entitled to attend the oral proceedings before the Examining Division, which is not uncommon. This is in contrast to post-grant opposition filings, in which the opponent becomes a party to the proceeding, thereby obtaining, in particular, the right to be heard before a decision is made. Observations by third parties, which must be submitted in writing, may be submitted by mail or online.
Application division
Application divisions of European patent applications may be filed during the latter pending. Applications of European divisions must be submitted directly or by mail with one of the EPO archiving offices, at the European Patent Office in Munich, The Hague or Berlin. It can also be submitted using the so-called epoline online filing software. The application of the European division to the national authorities has no effect on the law.
Continue processing when the rights process starts, and return
The grant application process may continue if the national process has been institutionalized before a national court or authority by a third party seeking a verdict recognizing its right to grant European patents in lieu of the registered applicant. However, the grant process does not stay before the publication of the application. If a final decision is issued to recognize the right of a third party to the grant of a European patent, a third party may
- "(a) adjudicate the European patent application as his own solicitation instead of the applicant;
- (b) submit a new European patent application with respect to the same invention; or
- (c) request that the European patent application be rejected. "
Under Regulation 14 (3) of the EPC, the European Patent Office may continue the grant process anytime "regardless of the stages achieved in the national process", taking into account all valid interests.
Euro-PCT App
Pasal 150 EPC
program PACE
Program to accelerate the prosecution of European patent applications, or the PACE program, "enables applicants who want their applications to be processed quickly to obtain European search reports plus opinions under Rule 62 (1) EPC, the first inspection report and any communication under Rule 71 (3) EPC in a tight deadline ". Starting January 1, 2016, a written online request ("PACE request") must be filed, using a "special request form (EPO Form 1005)", to request acceleration under the PACE program. PACE requests are removed from public scrutiny. In 2009, accelerated processing under PACE was reportedly requested in just 6.3% of the files. A question by the applicant to know when the next communication is expected is not considered a request for an accelerated prosecution.
Best Programs
Under the so-called "Bringing Joint Checks and Searches" of the BEST program or program (also referred to as the "BEST system"), the EPO inspection procedure was reorganized in 1990, with the principal examiner of the Examining Division being the tester who had brought out the search.
Withdrawal of app
Withdrawal of applications is the most bleak procedural step that can be taken, because the application to death without the possibility of a revival. European patent applications may be withdrawn at any time by the applicant, except when third parties have initiated proceedings concerning the right to grant European patents. One reason for withdrawing an application is to avoid publication, if for example it has been decided to keep the discovery secret rather than applying for a patent. To avoid publication, withdrawals must be made before the "technical preparation stop for publication". Another reason to withdraw the application is to get a refund of search fees and/or exam fees, if it has been decided not to continue further applications. According to the EPO Guidelines,
- "The application may be withdrawn by a signed declaration, which must be unqualified and unambiguous (...). The applicant is bound by an effective withdrawal declaration (...), but may subject to the provision that app content is not publicly known. "
The Appeals Council has dealt with a large number of decisions with the question of whether the withdrawal of a European patent application can be withdrawn, since it was made erroneously. In particular, the Council has stated that "the withdrawal of European patent applications can only be withdrawn as long as the public has not been formally notified of the withdrawal". In other words, for the sake of legal certainty, it is generally too late to request the withdrawal of the withdrawal notice after the withdrawal has been registered and notified publicly in the European Patent Bulletin, since in this case the withdrawal will harm the public interest or the interests of third parties.
Responsibility in EPO
The Examination Division usually consists of three technically qualified testers: the Primary Examiner, who compiles the search report and does most of the correspondence (written or on the phone) with the applicant; a Chairman who has complete control over the examination of the application and who leads every oral process held; and the Second Tester who is responsible for taking minutes from every oral process. The three members have a vote on any formal issues that must be decided, including the main decision whether to allow or reject the patent application. If the Examining Division is supplemented by a member who has legal qualifications, so the Division consists of four members, then the Chairman has a casting vote.
Statistics
EPO received its first application in 1978. The one million application was issued on May 17, 2000, and two million on December 10, 2008. More than 70% of patent applications filed in 1991 have been finally awarded.
Note
References
External links
- European Patent Convention, Part IV, Procedures to grants (Articles 90 to 98)
- Guide for Examination at European Patent Office
- Part A, Formal Check Guidelines
- Part B, Guidelines for Searching
- Part C, Guidelines for Procedural Aspects of Substantive Examination
- Part E, Guide on General Procedures
- Legal Research Services for Appeals Board, European Patent Office, EPO Appeals Case Case (8th edition, July 2016), iv . b Ã,: "Inspection procedure"
Source of the article : Wikipedia
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