European intellectual property law

Last updated
European Intellectual Property Law
TypeIntellectual Property
Region served
Europe
Members
Austria, Belgium, Bulgaria, British, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece
Main organ
European Patent Office
Website www.epo.org

Intellectual property refers to an intangible property right which is enjoyed by law after the engagement in intellectual creative conducts, which cover a range of intangible property rights: patent, copyrights, trademark, design right and an indication of the original. Europe Union regulates the range of the law, including three different interdependent serious legislation, primary and secondary legislation, and law in cases. The empty area regulated by individual national members is not in the coverage of EU law. Based on the EU treaties, EU members each have the right to transfer and implement the discretion of EU law. Therefore, compared to conducting the application to the separate countries in EU it harbors more advantages to apply for the European patent office when seeking to obtain more extensive patent protection. That is to say, at each signatory of the Convention of European Patent, the holder who are granted the patent is given the equivalent right to the national patent of the countries.

Contents

History of European intellectual property

The European patent system offers the home of the world patent system. Venice in 1474 [1] and the British Monopoly Law in 1623, [2] contributed to the earliest patent system. The development of the European patent system stands for the pioneer and epitome of the evolution of the international patent system; it is the ultimate goal to establish a globalized unified (single) patent system. Besides, EPC, which was signed on 2/10 1973 in Munich, Germany, and entered into force on October 7, 1977, accepted the first patent application on 1/6, 1978. [3] Despite the fact it does not have the membership of the EPC, the EPC system has undergone a large-scale development from the first eight members states to the current 32 members states and five countries, they have recognized the patent rights granted by the EPC. The European Patent Organization established by EPC functions as the European Patent Office and the Administrative Commission. The European Patent Office takes up granting European patents. The Administrative Commission is to oversee the work of the European Patent Office. Headquartered in Munich, Germany, the European Patent Office is conducting the full responsibility for the search, examination and authorization of European patents. Also, with a brand in The Hague and the Netherlands coordinated responsibilities for search. Anyone of the languages, English, German and French, and European patent applications are utilized as the official working languages of the European Patent Office.

Member States of EPC (as of August 23, 2007): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom, Malta. [4]

Individual rights

Patent

In the United Kingdom, a patent which may be granted for an invention should satisfy several demands: being novel, involved with an inventive procedure, being capable of industrial application and not otherwise excluded from patentability. [5] If the invention is regarded as a product, the patent owner can have the right to prevent third parties from making, disposing of, offering, utilizing importing or remaining that product. If it is deemed as a process, the patent owner can prevent third parties from making use of it or disposing of, offering, using importing or keeping any product made by means of that process. [6]

Although the patent law was not formally incorporated into the entire community, similar practices were still adopted by other member states and the European Patent Office. According to the European Court of Justice in the Centrafarm v Sterling Drug case, [7] a patent contains :

The guarantee that the patentee, to reward the creative effort of the inventor, possesses the exclusive right to apply an invention with a view to manufacture and produce industrial products and putting them into circulation for the first time, either directly or by the grant of licenses to third parties, as well as the right to oppose infringements.

Copyrights

In the United Kingdom, copyright, as a property includes serious descriptions of work: original literary, dramatic, musical or artistic works, sound recordings, films, and the typographical arrangement of published editions. [8] The owner of copyright possesses the following exclusive rights: to copy the work; to release copies of the work to the public; to rent or lend the work to the public; to perform, present or play the work in public; to perform communication of the work to the public; to make an adaptation of the work or conduct any of the above mentioned in relation to an adaptation. [9]

Similarly, although the patent law was not formally incorporated into the entire community, similar rules were employed by other member states.

Based on the thought of commercial usage in Europe, Musik Vertrieb Membran v GEMA case [10] demonstrated that the commercial property was recognized and acknowledged to be provided the protection afforded by copyright, especially when commercial use is carried out in a manner that allows for the sale of goods containing literary or artistic works in different countries. Besides, in terms of protection, the European Court of Justice rules in Phil Collins v Imtrat [11] states that:

To guarantee the protection of the rights and economic rights of right holders can be achieved. The protection of moral rights provides an opportunity for both the author and performers particularly to restrain the work from distortions, damage or other modifications, which are detrimental to their honor or reputation. Copyright and proximity are also economically inherent, as they are authorized to commercialize the sale of protected works, especially in the form of licenses for payment of royalties.

Trademark

The trademark as a registered right may be authorized by a single member state or a community to achieve the adoption of the 'Domestic Market Integration Office' in Alicante（a city in Spain）. No matter which case, A trademark includes any symbol that can be represented graphically, especially words, including a person's name, design, letters, numbers, the shape or packaging of a commodity, as long as these symbols meet the requirement of distinguishing the commodity or service, and undertaking commitments of other enterprises [12]

The trademark owner possesses the right to prohibit third parties from utilizing the same or confusing similar identifiers during the process of their trade without any permission, such as attaching the identification to the goods or their packaging, and importing or exporting the goods bearing the identification or will be put on the market. Everyone can forbid the application of the same logo associated with a registered trade in goods or services, and can also prohibit the utilization of the same or similar logo on the same or similar goods, which unavoidably leads similar confusion to the public. A well-known trademark owner also possesses the right to prohibit any implementation of the logo under these conditions of the absence of proper cause, improper use or damage to distinctive features or visibility of the trademark. [13]

Furthermore, it contains the right of the owner to forbid any application of the mark that may impose an influence on the guarantee of origin. The origin guarantee deemed to be a significant function of the mark aims at ensuring that the origin of the trademarked goods can be clearly known to the consumer or end user, freeing them from any possibility of distinguishing the goods from the products of another place of origin. In addition, it can determine that a trademarked product sold to it has not been subjected to third-party intervention without performing authorization from the trademark owner in the early stages of sale, for example, the effect of the original state of the goods. [14]

As with the Right to design, the specific subject matter of trademark rights does not include the right to forbid the transport of goods. The European Court of Justice in the Rioglass case [15] is legally employed in the production of cars in Spain and transported to Poland and then equipped with a non-member car window and windshield trademark. The court declared that the transport of products would be legally produced in a Member State and then transported to a non-member State, and if one or more Member States did not involve any sale of the products related, therefore it is not necessary for them to bear the responsibility of infringing the specific subject matter of the trademark.

Appellations of origin and Geographical Indications

Distinguished from trademark rights, specific names can also be protected as intellectual property, such as geographical (e.g. Champagne, Port or Bordeaux) or non-geographical names (e.g. Feta or Basmati) associated with certain products. Products originating from that region may present specific qualities or characteristics and the association that arises therefrom is protected by giving local producers an exclusive on the name.

In the community, agricultural by-products or food names may be protected by the Protected Designation of Origin (PDO) and Geographical Indications (PGI) in accordance with Regulation 1151/2012.

Design rights

In the community, registered and unregistered designs protect the product in whole or in part from several aspects of the particular contour, color, shape, structure and/or product characteristics of the product itself or its decoration. [16] If the design is novel and can create an overall unique impression that is different from any previous design to the user, the design right can be obtained easily and quickly. [17] The holder has the right to prohibit third parties from making, providing, placing, importing, exporting, using or storing any product which contains or applies the design. [18]

Besides, Transport within the Community in the case of the commission v France [19] related to Article 30 of the EC Treaty, includes the transport of goods from one Member State to another across the border where one or more Member States are not involved with protected designs. The implementation of the appearance does not constitute the part of the specific theme of both the industrial and commercial property rights in terms of the design.

European Union Intellectual Property Office

The institutional setting of the European Patent Office (EPO) is made up of the following five division bureaus, headquarters, department, department, and section. [20] The bureau sets the position of one director and five deputy directors. A total of five headquarters-level institutions are set up throughout the overall situation. Besides, each deputy director also undertakes the first-in-command of a headquarters. Among them, the first headquarters, which is located in The Hague, perform the duty of searching and documentation. [21] The remaining four headquarters are located in Munich and the second headquarters shoulder the responsibility for the integrated administrative management; [22] and the fifth headquarters are in charge of legal and international affairs. In addition, the European Patent Office is equipped with a patent information center in Vienna, Austria. [23] With branches in Berlin, it undertakes part of management, search, and documentation.

The patent protection of European countries through the EPO embraces the following characteristics:

Related Research Articles

An industrial design right is an intellectual property right that protects the visual design of objects that are purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

<span class="mw-page-title-main">European Patent Office</span> One of the two organs of the European Patent Organisation

The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative body. The actual legislative power to revise the European Patent Convention lies with the Contracting States themselves when meeting at a Conference of the Contracting States.

<span class="mw-page-title-main">European Patent Convention</span> International patent treaty

The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. The term European patent is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally enforceable, nationally revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.

The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on 20 March 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property. The convention is currently still in force. The substantive provisions of the Convention fall into three main categories: national treatment, priority right and common rules.

In patent law, industrial design law, and trademark law, a priority right or right of priority is a time-limited right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively. The priority right allows the claimant to file a subsequent application in another country for the same invention, design, or trademark effective as of the date of filing the first application. When filing the subsequent application, the applicant must claim the priority of the first application in order to make use of the right of priority. The right of priority belongs to the applicant or his successor in title.

A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing patent applications and oppositions to granted patents.

The EPC 2000 or European Patent Convention 2000 is the version of the European Patent Convention (EPC) as revised by the Act Revising the Convention on the Grant of European Patents signed in Munich on November 29, 2000. On June 28, 2001, the Administrative Council of the European Patent Organisation adopted the final new text of the EPC 2000. The EPC 2000 entered into force on December 13, 2007.

Industrial property is one of two subsets of intellectual property, it takes a range of forms, including patents for inventions, industrial designs, trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition. In some cases, aspects of an intellectual creation, although present, are less clearly defined. The object of industrial property consists of signs conveying information, in particular to consumers, regarding products and services offered on the market. Protection is directed against unauthorized use of such signs that could mislead consumers, and against misleading practices in general.

A divisional patent application, also called divisional application or simply divisional, is a type of patent application that contains subject-matter from a previously filed application, the previously filed application being its parent application. While a divisional application is filed later than the parent application, it retains its parent's filing date, and will generally claim the same priority. Divisional applications are generally used in cases where the parent application may lack unity of invention; that is, the parent application describes more than one invention and the applicant is required to split the parent into one or more divisional applications each claiming only a single invention. The ability to file divisional applications in cases of lack of unity of invention is required by Article 4G of the Paris Convention.

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.

In patent law, an inventor is the person, or persons in United States patent law, who contribute to the claims of a patentable invention. In some patent law frameworks, however, such as in the European Patent Convention (EPC) and its case law, no explicit, accurate definition of who exactly is an inventor is provided. The definition may slightly vary from one European country to another. Inventorship is generally not considered to be a patentability criterion under European patent law.

Maintenance fees or renewal fees are fees paid to maintain a granted patent in force. Some patent laws require the payment of maintenance fees for pending patent applications. Not all patent laws require the payment of maintenance fees and different laws provide different regulations concerning not only the amount payable but also the regularity of the payments. In countries where maintenance fees are to be paid annually, they are sometimes called patent annuities.

A patent application is a request pending at a patent office for the grant of a patent for an invention described in the patent specification and a set of one or more claims stated in a formal document, including necessary official forms and related correspondence. It is the combination of the document and its processing within the administrative and legal framework of the patent office.

This is a list of legal terms relating to patents and patent law. A patent is not a right to practice or use the invention claimed therein, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor or his successor in rights in exchange to a public disclosure of the invention.

<span class="mw-page-title-main">Grant procedure before the European Patent Office</span>

The grant procedure before the European Patent Office (EPO) is an ex parte, administrative procedure, which includes the filing of a European patent application, the examination of formalities, the establishment of a search report, the publication of the application, its substantive examination, and the grant of a patent, or the refusal of the application, in accordance with the legal provisions of the European Patent Convention (EPC). The grant procedure is carried out by the EPO under the supervision of the Administrative Council of the European Patent Organisation. The patents granted in accordance with the EPC are called European patents.

<span class="mw-page-title-main">Trademark</span> Trade identifier of products or services

A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. Trademarks used to identify services are sometimes called service marks.

Iran is a member of the WIPO since 2001 and has acceded to several WIPO intellectual property treaties. Iran joined the Convention for the Protection of Industrial Property in 1959. In December 2003 Iran became a party to the Madrid Agreement and the Madrid Protocol for the International Registration of Marks. In 2005 Iran joined the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, which ensures the protection of geographical names associated with products. As at February 2008 Iran had yet to accede to The Hague Agreement for the Protection of Industrial Designs.

During the grant procedure before the European Patent Office (EPO), divisional applications can be filed under Article 76 EPC out of pending earlier European patent applications. A divisional application, sometimes called European divisional application, is a new patent application which is separate and independent from the earlier application, unless specific provisions in the European Patent Convention (EPC) require something different. A divisional application, which is divided from an earlier application, cannot be broader than the earlier application, neither in terms of subject-matter nor in terms of geographical cover.

A biological patent is a patent on an invention in the field of biology that by law allows the patent holder to exclude others from making, using, selling, or importing the protected invention for a limited period of time. The scope and reach of biological patents vary among jurisdictions, and may include biological technology and products, genetically modified organisms and genetic material. The applicability of patents to substances and processes wholly or partially natural in origin is a subject of debate.

Registration of intellectual property in Ghana is key to safeguarding one's intellectual efforts from infringement. Intellectual property law of Ghana encompasses intellectual property (IP) laws in Ghana, such as laws governing copyright, patent, trademark, industrial design rights, and unfair competition. The main intellectual property laws in Ghana include the Copyright Act, 2005, the Patents Act, 2003, the Trademarks Act, 2004, the Industrial Designs Act, 2003 and the Protection Against Unfair Competition Act, 2000. These are supplemented by regulations passed by the Legislature to augment the rate of development under IP laws.

References

  1. ↑ Journal of the Patent and Trademark Office Society (Online). Arlington, Va: Patent and Trademark Office Society, 1985.
  2. ↑ Statute of Monopolies 1623. Legislation.gov.uk. http://www.legislation.gov.uk/aep/Ja1/21/3/contents .
  3. ↑ "European Patent Convention". new.epo.org. Retrieved 2023-08-24.
  4. ↑ "Countries in the EU and EEA". GOV.UK. Retrieved 2023-08-24.
  5. ↑ Patents Act 1977, s1
  6. ↑ Ibid, s60
  7. ↑ Case 15/74 Centrafarm v Sterling Drug [1974] ECR 1147
  8. ↑ Copyright, Design and Patent Act 1988, s1
  9. ↑ Ibid, s16
  10. ↑ Case 55/80 Musik-Vertrieb Membran v GEMA [1981] ECR 147
  11. ↑ Case 326/92 Phil Collins v Imtrat [1993] ECR
  12. ↑ Dir 89/104, Art 2
  13. ↑ Dir 89/104, Art 5
  14. ↑ Case 102/77 Hoffmann-La Roche v Centrafarm [1978] ECR 1139
  15. ↑ Case 115/02 Administration des douanes et droits indirects v Rioglass [2003] ECR
  16. ↑ Dir 98/71 [1998], Art 1
  17. ↑ Dir 98/71, Art 5
  18. ↑ Dir 98/71, Art 12
  19. ↑ Case 23/99 Commission v France [2000] ECR
  20. ↑ Loney, Michael 2018, Christian Archambeau’s challenges as EUIPO director. (European Union Intellectual Property Office)
  21. ↑ "Contact us". www.epo.org. Retrieved 2023-08-24.
  22. ↑ Article 6 – Headquarters - The European Patent Convention, Convention on the Grant of European Patents – (European Patent Convention), Part I – General and institutional provisions, Chapter II – The European Patent Organisation.
  23. ↑ Office E. EPO - Directions to the European Patent Office in Vienna. Epo.org. https://www.epo.org/service-support/contact-us/vienna/vienna.html .
  24. ↑ Article 14 – Languages of the European Patent Office, European patent applications and other documents - The European Patent Convention, Convention on the Grant of European Patents – (European Patent Convention), Part I – General and institutional provisions, Chapter III – The European Patent Office.
  25. ↑ Office E. EPO - The patenting process. Epo.org. https://www.epo.org/learning-events/materials/inventors-handbook/protection/patents.html .
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