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European patent law

European patent law covers a range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. For some states in Eastern Europe, the Eurasian Patent Convention applies. Patents having effect in most European states may be obtained either nationally, via national patent offices, or via a centralised patent prosecution process at the European Patent Office (EPO). The EPO is a public international organisation established by the European Patent Convention (EPC). The EPO is neither a European Union nor a Council of Europe institution. A patent granted by the EPO does not lead to a single European patent enforceable before one single court, but rather to a bundle of essentially independent national European patents enforceable before national courts according to different national legislations and procedures. Similarly, Eurasian patents are granted by the Eurasian Patent Office and become after grant independent national Eurasian patents enforceable before national courts.

Patent applications can be filed at the relevant national patent office or at the EPO. Alternatively, an international application may be filed under the Patent Cooperation Treaty (PCT) and later nationalised in the desired countries or at the EPO. However, Belgium, Cyprus, France, Greece, Ireland, Italy, Latvia, Malta, Monaco, the Netherlands, and Slovenia have "closed their national route" meaning that it is no longer possible to nationalise an international application in those countries directly and protection can only be obtained via the EPO.

Some of the 38 EPC Contracting States require the patentee to file a full translation of the granted European patent with the national patent office of the State if the text of the European patent as granted is not in one of their official languages. If the translation is not filed, the European patent is deemed to have no effect from the outset in that State. The London Agreement, which entered into force on May 1, 2008, significantly reduces the number of required translations in the states that are party to it.

All other substantive attributes of each national part of an EP patent, such as what acts constitute infringement (indirect and divided infringement, infringement by equivalents, extraterritorial infringement, infringement outside the term of the patent with economic effect during the term of the patent, infringement of product claims by processes for making or using, exports, assembly of parts into an infringing whole, etc.), the effect of prosecution history on interpretation of the claims, what remedies are available for infringement or bad faith enforcement (injunction, damages, attorney fees, other civil penalties for willful infringement, etc.), equitable defenses, coexistence of an EP national part and a national patent for identical subject matter, ownership and assignment, extensions to patent term for regulatory approval, etc., are expressly remitted to national law.

Countries may create unitary protection with regards to patents, which means that the effect (including revocation) is equal in all countries concerned. Such unitary protection was effected (both for "national" and European patents) by Switzerland and Liechtenstein in 1980 with the Treaty between the Swiss Confederation and the Principality of Liechtenstein on Patent Protection of 1978.

National patents may be the only available patents in European states that are neither party to the European Patent Convention nor the Eurasian Patent Convention. This is the case for Andorra and Ukraine. Moldova, Montenegro and Bosnia and Herzegovina are extension states to the European Patent Convention, which means that European patents granted are deemed to take effect also in these states, if extension is correctly requested; and provided certain translation and publication requirements are met.

Substantive patent law has been harmonized to a certain extent across national laws in Europe, notably upon signature of the Strasbourg Convention of 1963 and the European Patent Convention (EPC) of 1973, and upon entry into force of the TRIPs Agreement. In practice however, the interpretation of common substantive provisions have led to different interpretations in different European countries.

The creation of a European community patent system, which would lead to a single unitary patent in the European Union (or its predecessor the European Community), has been debated since the 1970s. In 2012 agreement was reached between all European Union Member States except Italy and Spain on a European patent with unitary effect, more commonly known as the unitary patent, a proposed new type of patent that would be valid in participating member states of the European Union. Unitary effect can be registered for a European patent upon grant, replacing validation of the European patent in the individual countries concerned. The unitary effect means a single renewal fee, a single (group of) owner(s), a single object of property, and uniform protection, which means that revocation as well as infringement proceedings are to be decided for the unitary patent as a whole rather than for each country individually. Licensing is however to remain possible for individual countries.

Other legal agreements have been proposed outside the European Union legal framework to reduce the cost of translation (of European patents when granted) and litigation, namely the London Agreement (which entered into force in 2008) and the European Patent Litigation Agreement (EPLA) (which never entered into force).