Patents

In order to obtain a European Patent, the invention must have certain requisites:

• novelty: the invention must not be comprised in the state of the art; the state of the art is held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the patent application;
• inventiveness: an invention is considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art;
• industrial applicability: an invention is considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

A Patent can be considered as an agreement between a Patent owner and a country. He or she accepts to place his inventions at the community’s disposal, and, in exchange, the country assigns him or her the absolute monopoly of the invention for a limited period of time (in general, 20 years from the filing date).

A Patent is essentially composed of two parts: a description, where the invention is disclosed, if necessary, with the aid of drawings, and the claims, that define the scope of protection conferred by the patent.

The following are not regarded as inventions: discoveries, scientific theories, mathematic methods; aesthetic creations; schemes, rules and methods for performing mental acts, playing games or doing business and programs for computers; presentations of information.

Furthermore, a European patent cannot be granted for inventions whose publication or realization would be contrary to public order or decency;  plant or animal varieties or essentially biological processes for the production of plants or animals; methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body.

Basically, a technological innovation or a know-how can be protected in two ways: by industrial secret or by a Patent. The industrial secret is the most economical way, but it is not risk-less; even if we do not think about fanciful industrial spying, it is very difficult to seal off a factory and the people who work there from leaking information outside. Besides, in several cases, for example when a new manufacture must be protected, that is simply impossible.

An active Patent policy must not be reduced to the filing and the obtainment of a Patent; it is also important to check the Patent literature in the concerned technical field in order to identify potentially dangerous Patent applications and examine the possibility of attacking their patentability.

As a matter of fact, the European procedure provides for the possibility of opposing the grant of a Patent during the 9 months that follow its publication. If you are aware of any documents that could destroy novelty or inventiveness of a dangerous Patent, it is advisable to start an opposition procedure.

The European Patent derives from an agreement ratified by a certain number of European countries. It allows, through a single procedure, to obtain a Patent that can be validated in all member states of the European Patent Convention (EPC). It includes not only all countries of the EU, but also other countries, such as Switzerland and Turkey. At the present, the countries that have ratified the European Patent Convention are 38: Albania, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, San Marino, Slovenia, Slovakia, Serbia,  Spain, Sweden, Switzerland, Turkey, United Kingdom.

The European Patent gives the owner, in the designated countries and once the procedure for the national validation has been performed, the same rights that would derive from a national Patent obtained in those same countries. 

The European Patent application can be filed at the Patent Offices of the member States of the EPC or at the European Patent Office, in Munich, The Hague or Berlin.

After filing, the application is subjected to the examination of the formal conditions; then, if it is accepted, the following step is the search for documents that can be relevant to the application both for requisites of novelty and inventiveness. 18 months after the first filing date (priority), the application is published together with the search report. From the publication of the search report the applicant has to decide in not more than six months whether he wants to go on with the procedure, starting with the substantive examination of the application in order to verify whether it has the requisites of novelty and inventiveness. At the end of the examination, the application is either granted or refused. If the Patent is granted, the applicant can start the validation procedures in all the countries where he or she wants the patent to be in force. If the Patent language is not an official language of the designated country, it might be requested to file the translation either of the claims or of specification and claims, otherwise the Patent will not be valid in that country.