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Streamlining European Patents

The French Parliament recently ratified the London Protocol, a treaty which reduces the costs of translating European patents. Frédéric Foubert, who heads the Technology Transfer Office at CNRS, sheds some light on the advantages of the new patent filing procedures.

In spite of its name, the European patent does not systematically protect an invention in all European countries. Why not?
Contrary to popular belief, there is no such thing as an international patent, where a request made in one country is valid on a regional, continental, or even global level. To this day, all patents are valid only at a national level.
 
In that case, what do we mean by a European patent?
There are, in fact, two sides to this question. Firstly,  procedures for obtaining a national patent are the same in all European countries: Among the 37 countries that ratified the 1973 convention concerning European patents (most are in the EU, but they also include Turkey, Switzerland, and Albania), the patentability criteria are effectively identical. To reach this consensus, the procedures were both streamlined and simplified.
Secondly, it is effectively possible to file for a ‘‘European patent’’ as such. This is an alternative to filing a patent in France, for example, and then having to extend it to other countries. In this case, however, there is a single and unique patent request to be made irrespective of the number of countries in which one wishes to protect it: There is a single filing procedure, a single issuance procedure, a single language, and a single file to manage–which considerably reduces the costs of protecting and managing patent requests in Europe.
But once again, even if the European patent remains consistent throughout this procedure, it will be ‘‘dispersed’’ into national phases when issued: Each country can then interpret the European patent according to its own legislation, especially when national tribunals handle patent infringement lawsuits.

In practice, how does one apply for a European patent?
The procedure begins by filing the request. In France, this is done at the national patent office (INPI, Institut National de la Propriété Industrielle), or directly with the European Patent Office (EPO) in Munich. The application can be made in one of the Office’s three official languages: English, French, or German. The date of filing determines the starting point of commercial monopoly, which cannot exceed 20 years. In the first 12 months, the inventor designates the countries in which his commercial monopoly will apply if his patent is accepted.
The publication of the request takes place 18 months after the filing date, following extensive examination by the EPO. In the end, the file, including text and blueprints, includes two main parts. The first one is a “specifications” section, which describes the invention and can be very long (up to 100 pages or more in the field of pharmaceuticals, for example). The second is a “claims” section, which is more concise and defines its legal range. So far, the inventor had 30 months to have it translated in each of the countries for which he had asked protection. This will change when the London Treaty comes into effect.

This will result in considerable savings given that there are more than 20 official languages in Europe...
It is a fact that filing for patents in European countries, whether on a national level or directly via a European patent, costs on average twice as much as filing in the United States or Japan. This is partly due to the translation costs, which represent €1000 to €1500 per language, and up to €5000 for less common languages, a considerable amount of money, especially for small companies.
Herein lies the advantage of the London Protocol, already signed by 13 countries and just ratified by France, after seven years of heated debates. Indeed, French language defenders and patent right professionals feared that English would in the long term become the official language of patents. In fact, with the London agreement, a European patent will always be written in one of three languages, English, German, or French, but will no longer need to be subsequently translated. This means that a patent filed in France will not have to be translated when it is extended to other countries. Only the “claims” section will continue to be translated in the language of each country for which protection is required. A patent written in French will therefore be valid in all signatory countries of the Convention of 1973 that ratified the London Protocol. Similarly, a text written in German or in English will no longer be rejected by a court in France, as stipulated by a decision of the Constitutional Council of 2006.

What will it change for an organization like CNRS?
As a general rule, CNRS translates its patents into English, Japanese, and only six European languages–thus covering only a fraction of European countries. The application of the Protocol should lead to savings of close to €1.5
 million per year. This money could be used to file additional patents and  extend our patent coverage in the world.
Interview conducted by
Emmanuel Thévenon

Contacts :

Frédéric Foubert
Service “Transferts
de technologies” du CNRS, Paris.
frederic.foubert@cnrs-dir.fr


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