In 2000, a diplomatic conference was held in Munich to revise the European Patent Convention (EPC), which was drafted in 1973 and has been in force ever since the EPO began.
The result of this diplomatic conference is the European Patent Convention 2000 (EPC2000).
The aim of the revision of the EPC was to remedy weaknesses in the EPC 1973 and to respond to external developments including international patent law (for example TRIPs and the Patent Law Treaty (PLT)), the needs of users and deregulation. The aim of the revision was also to streamline European procedures with a view to providing flexibility to adapt to further developments. EPC2000 will enter into force on 13 December 2007, which is 2 years after ratification of EPC2000 by the 15th member state, which was Greece, on 13 December 2005. Any member state which does not ratify by 13 December 2007 will cease to be a party to the EPC.
EPC2000 differs with respect to the present EPC1973 in various respects. EPC2000 has been streamlined by transferring many procedural details, such as time limits from the Convention (Articles) to the Implementing Regulations. This provides flexibility, since with EPC2000 procedural changes will be able to be decided by the EPO”s administrative council rather than necessitating a diplomatic conference, which is the case with the EPC1973, which requires a diplomatic conference to amend the Articles of the Convention.
A whistle stop tour of the main changes is now given:
i) New Procedures:
With respect to EPC1973, EPC2000 offers two new procedures: under new Article 105a, b, c, a patent proprietor may apply directly to the European Patent Office for limitation or revocation of a granted European patent. Further, under new Article 112a, a petition for review of Board of Appeal decisions may be filed. It is to be noted that such petitions may only be filed for fundamental procedural defects of criminal acts impacting on the decision. Further, such a petition will have no suspensive effect.
In EPC2000, the remedies available to parties to proceedings before the EPO have also been changed with respect to EPC1973. Further processing as set out in Article 121 EPC which currently exists as a remedy under EPC1973 having rather limited applicability, in EPC2000 is provided as a more general remedy for failing to observe a time limit by payment of a fee within two months of a communication of failure to pay or noting loss of rights. The second remedy available under EPC1973, that of restitutio in integrum as set out in Article 122 EPC, has been narrowed down in its application in EPC2000. For example, restitutio in integrum is no longer available if further processing is available. Restitutio in integrum has however, been made available in EPC2000 for failure to file a subsequent application within the priority year if the applicant requests within two months of expiry of the priority year. This remedy is not available at all in EPC1973. It is to be noted that the conditions for a successful remedy using restitutio in integrum are the same as in EPC1973.
iii) Filing Requirements:
In EPC2000, the requirements for securing a date of filing have been amended. Under EPC2000, it will no longer be necessary to file a claim in order to secure a filing date. Further, a reference to a previously filed application may be used to replace the description and the contact details of the applicant are sufficient to secure a filing date. With respect to the filing of European patent applications, under EPC2000 European applications may be filed in any language, claims may be late filed within two months of a communication from the EPO informing the applicant that they are missing, it is not necessary to file a declaration of priority upon filing. Instead, the declaration of priority may be made or corrected within 16 months of the priority date. In a further relaxation with respect to current European practice, under EPC2000 missing description pages may be filed late without redating being necessary, provided they are completely contained within the priority document.
In EPC2000, the priority requirements have also been brought in line in accordance with TRIPs, so that priority will be recognized from WTO member states. Further a priority claim may be made or corrected within 16 months from the priority date. Further a translation of the priority document will be requested only if relevant to patentability.
v) Prior art:
A further main change is that intervening publications which form part of the prior art citable under Article 54(3) EPC1973 for novelty purposes only, under EPC2000 will be citable for all contracting states regardless of the designated States in the application and the intervening publication (in other words present Article 54(4) EPC1973 has been deleted).
vi) Second medical use:
And finally, Article 54 EPC2000 has been amended to state that purpose-limited product protection is available for second or further medical use of a known substance.
Whilst major substantive changes relating to how the EPO assess patentability, novelty and inventive step, for example, are not expected under EPC2000, it will be appreciated that with respect to procedural matters some of the changes will impact on practice before the EPO.
Further information can be found on patlaw-reform.european-patent-office.org/epc2000/