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European Patent Law

European Patent Law. Part II. Drafting claims. Article 83 EPC – Disclosure of the invention; ”The European patent must disclose the invention in a manner sufficiently clear and completet for it to be carried out by a person skilled in the art.”. Drafting claims.

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European Patent Law

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  1. European Patent Law Part II

  2. Drafting claims • Article 83 EPC – Disclosure of the invention; ”The European patent must disclose the invention in a manner sufficiently clear and completet for it to be carried out by a person skilled in the art.”

  3. Drafting claims • Article 84 EPC – The claims; ”The claims shall define the matter for which protection is sought. They shall be clear and consise and be supported by the description.”

  4. Drafting claims • Apparatus, devise; physical entity (noun) • Product; physical entity (noun) • Method; activity (verb) • Use; activity (verb) • Computer program product

  5. Drafting claims • Independent/dependent claims

  6. Patent infringements in Europe • Article 64(3) EPC; infringement proceedings are to be dealt with by national law • Epilady/Improver • Ullrich, “National, European and Community Patent Protection: Time for Reconsideration”, EUI Working Papers LAW No. 2006/41 (www.iue.it)

  7. Patent infringements in Europe • Enhancing the patent system in Europe (COM(2007)29-03-07) • Community patent • EPLA (European Patent Litigation Agreement)

  8. Article 69 Article 69 EPC – ”The extent of the protectionconferred by a European patent or a European patnet application shall be determined by the claims.” Protocol on the Interpretation of Article 69

  9. Broad patents • Mobil/friction reducing additive (G 2/88) • 2nd and further medical uses

  10. ’purpose-bound protection’ • Restricting protection only to the specific use disclosed in the application • Monsanto (ECJ C-428/08)

  11. Biotechnology patents Challenges; discoveries, novelty, inventive step, industrial applicability, broad claims What is inventive about uncovering a naturally-occuring gene? When is a naturally occuring substance new?

  12. EU biotechnology directive Adopted 1998 after 10 years of debate Aims to improve EU competitiveness of EU biotech industry by harmonising patent laws • Article 6 of the directive (”morality clause”) (EPC Rule 23d(c); 28(c) EPC 2000)

  13. Human embryonic stem cell inventions • Stem Cell Patents: European Patent Law and Ethics Report (2006) • The Ethics of Patenting DNA, Nuffield College • WARF (”embryo destruction”) (G 2/06)

  14. ’essentially biological processes’ • G 2/07 (’broccoli’) and G 1/08 (’tomato’)

  15. Software patents Article 52(2) explicitly excludes patenting of computer programs as such. What does this mean in practice?

  16. Software patents • Development of EPO jurisprudence • 1978-1985; EPO Guidelines – ”If the contribution to the known art resides solely in the computer program then the subject matter is not patentable in what ever manner it may be presented in the claims” • 1985-1998/99; Vicom (T 208/84); IBM cases – computer programs as a technical means to realise the technical effect

  17. Software patents • Remaining problem; what amounts to a technical contribution; what is a technical problem? Business method patents • 1998/99-present; ”The exclusion from patentability of programs for computers as such. . . May be construed to mean that such programs are considered to be mere abstract creations, lacking in technical character. . . This means that programs for computers must be considered as patentable inventions when they have technical character” (T935/97); Any need for exclusion as such?

  18. G 3/08 Tension between the ’technical effect approach’ and the ’Any hardware approach’; What’s next?

  19. Contributory approach The approach has been to ask if the invention makes a technical contribution to the state of the art – that is, to the total sum of human knowledge – and if so, it will be patentable so long as the contribution is not solely in the realm of excluded subject matter. A technical contribution is one which produces a technical effect, and in most cases this means a real-world change in the state, operation, or function of something tangible.

  20. Relationship between technical character and technical effect • Technical effect that gives technical character; • (1) control of an industrial process, • (2) processing of data which represents physical entities, • (3) control of internal functions of a computer itself or its interfaces

  21. Relationship between technical character and technical effect • Technical effect can be found in a computer program that • Affects the efficiency or security of a process • Governs the management of computer resources • Regulates the rate of data transfer in a communication link

  22. European reform • Commission proposal for a directive on the patentability of computer-implemented inventions • ECJ Opinion 1/09

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