Patents in Europe
Patents in the European Union are based on two systems: the national patent and the European patent. Neither of them has community legislation behind it. National patents were the first to appear. These patents have been harmonized de facto in all the countries of the Union: all members of the European Union have signed the Paris Convention for the Protection of Intellectual Property (March 20, 1983) and the TRIPS (Trade-Related aspects of Intellectual Property Rights) agreement, or by its acronym in Spanish TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) on April 15, 1994.
The European patent is based on the EPC (European Patent Convention) or Munich Convention of 1973. The EPC grants rights in as many EU countries as the applicant wishes. This provides great flexibility. The EPC does not provide a court at European level, but national courts are the ones who must resolve any problems that arise. Nothing prevents different courts from settling applications made to them in different ways. The EPC established the European Patent Office to manage European patents.
On July 24, 1997, the European Commission presented the Green Paper on the Community patent and the patent system in Europe.[11] As a result of the debate initiated by this paper, the commission developed a communication for the European Council, the European Parliament and the Economic and Social Committee on this Green Paper. In this communication, the Commission proposed different initiatives and legislation on the Community patent. On 5 July 2000, the Commission presented a proposal for a council regulation on the Community patent (COM(2000) 412 final). The Council wants this proposal to be approved as soon as possible but it does not seem easy.
There is a unified international procedure that allows a centralized application for a patent, the subsequent processing of which can potentially give rise to a pool of patents in many countries. This is the so-called PCT (Patent Cooperation Treaty) procedure. The PCT procedure can be continued directly as a national patent application or as a European application before the European Patent Office.
The Community patent system proposed by the Commission must coexist with the systems in use (the national systems and the CPE). Coherence between these systems is achieved thanks to the EU's accession to the Munich Convention. The EPO will be the organization in charge of examining patents and granting the Community patent. The EPO would continue doing the same job as always.
The main characteristics of the community patent are unity and autonomy. They can only be granted, transferred, revoked or expire on an EU-wide basis and can only be subject to proposed legislation and general EU law. The CPE will regulate the patent granting procedure and the patentability requirements of this Community patent. This patent is, in short, a European patent within the meaning of the Munich Convention in which the area of application is the entire EU.
Today, the average cost of a European patent (for eight countries) is approximately EUR 30,000. The cost of translations takes up 39% of the total. The Commission's proposal seeks to reduce the cost of the patent by reducing the cost of translation and procedure.
To reduce the cost of translation, the proposal requires the translation of the entire patent application into a single working language of the EPO and two additional translations of the claims into the other two. Thus, translating a complete patent into all community languages would cost around €17,000, to the three EPO languages, €5,100, and, according to the commission's proposal, €2,200. It is clear that it is much cheaper.
Another proposal from the commission is to equalize the cost of procedures with those of the main commercial partners. The European patent is three times more expensive than the Japanese one and almost five times more expensive than the American one. Since it is the EPO that examines patents and its rates are set by the Munich Convention, the Commission cannot change them. But it can modify the renewal costs and it does so by bringing the European patent closer to the Japanese and the American one.
To resolve the legal problems that arise around patents, the Commission proposes the creation of a Community Court on Intellectual Property. In this way, uniformity in legislation and jurisprudence would be achieved.
The birth of the community patent is being very difficult. An issue as important as industrial property is not easily left aside by member states.
Software patents are not an easy point and there are two opposing opinions about them: patents will help develop the European software industry and patents will prevent its development. The third option, leaving things as they are, is also being defended by some companies in the sector such as IBM. On the one hand, the Commission, the BSA") and important software companies (European and, mostly, non-European). On the other hand, the open source software/free software community represented, fundamentally by Eurolinux") and the main European SMEs in the world of computing. It is not trivial legislation. Patents can be a total game changer for software development and especially OS/FS software development.
The European Parliament, in its directive 11979/1/04 of March 7, 2005, established that:
On the other hand, the United States allows software to be patented, but its regulations establish a distinction between inventing and patenting. This makes legal confrontations much higher than in other countries. Whoever proves that he has been the inventor of a product will have preponderance over whoever has patented it. In Latin America, software patenting is a poorly developed topic and most countries provide intellectual treatment to software while its registration is done using copyright regulatory frameworks.
The basic legal principles regarding the patentability of computer programs are two:
Computer programs "as such" are not patentable following article 52 of the CPE. Bound by said treaty, national laws reproduce this article in one form or another.
Patents are granted for inventions that have novelty "Novelty (industrial property)"), inventive step and have an industrial application.
Based on the aforementioned principles of what cannot be patented and what is not considered an invention, different European courts have ruled that a technical invention that uses a computer program is patentable. The first and most important of these examples comes from two decisions of the Technical Appeals Chamber of the European Patent Office, both involving IBM. The Chamber reached the following important conclusion:.
As of today, there are around 15,000 patents for computer programs in Europe and approximately 75% of them correspond to large non-European software companies.
On July 6, 2005 with an overwhelming majority of 648 of the 680 possible votes, the European Parliament completely rejected the software patent directive[12] sending a clear message against the patentability of software "as such" in Europe.
The Patent Cooperation Treaty (PCT) is an international agreement to streamline and facilitate the filing of patent applications, the search for prior inventions that could prevent the application from being approved, and the examination of the application, as well as the disclosure of technical information contained in the applications. The Treaty does not provide for the granting of “international patents”: the task and responsibility of granting patents falls exclusively to each of the patent offices of the countries where protection is sought or to the offices acting on behalf of those countries (the designated offices). The PCT does not compete with the Paris Convention, but rather complements it. In reality, this is a special agreement concluded within the framework of the Paris Convention and is only open to States that are already parties to that Convention.
The main objective of the PCT is to simplify, make more efficient and economical – from the point of view of the users of the patent system and the offices in charge of administering it – the procedure for applying for a patent for an invention when you want to apply in several countries:
In Spain, the regulation of patents is contained in Law 24/2015, of July 24, on Patents, which replaced the previous Law 11/1986, of March 20. In all fields of technology, inventions that are new, involve inventive activity and are susceptible to industrial application are patentable, although certain exceptions are contained for reasons of legislative policy, such as procedures for cloning human beings, procedures for modifying the germinal genetic identity of the human being, or the uses of human embryos for industrial or commercial purposes.
Previously, in Spain, weak patents (they were granted without determining whether the invention was new) and strong patents (they were granted after an examination that demonstrated the novelty of the invention) coexisted, with the applicant being able to obtain their patent through two different procedures. However, currently the system is unique and gives rise to strong patents, since the Spanish Patent and Trademark Office (public body in charge of granting it) carries out a substantive examination of compliance with the patentability requirements, based on a report on the state of the art and a written opinion.[13] In this way, Spanish patents are increasingly converging towards a system similar to that of its surrounding countries. In pursuit of greater agility in granting, the processing of third-party oppositions begins to take place during a period of six months once the patent is granted.