The the European Patent Office or OEB is an organization which grants Brevet S at the European level. Its seat is with Munich in Germany. It also has a department with $the Hague and offices with Berlin, Vienna and Brussels. It was created by the Convention on the European patent (1973), coming into effect on October 7th 1977. It is the executive body of the European Organization of the patents, which is an intergovernmental organization created on the basis of Convention on European patent CBE.

Members

At February 1st 2007, 32 States are members of the OEB:

The accession of Norway is planned for on January 1st, 2008.

Always at December 1st, 2007, in five States of the extensions of a European patent are possible:

  • Albania
  • Croatia (which is in the course of adhesion with the convention of Munich, and should become the 34eme Member State)
  • Serbia

The convention of Munich and the French constitution

The French constitution stipulates that national sovereignty belongs to the people which exert it by his representatives and the way of the referendum.

The council constitionnel moreover decided than no provision of constitutional nature authorizes transfers of whole or part of national sovereignty to " some international organization that this soit".

The European organization of the patents is included in the category of the international organizations, since it is not an community agency.

In addition, the grant of patent is included in the category of the individual administrative acts.

The administrative acts are sanctioned by the administrative and/or legal judges, and thus, in fine, by the Council of State and the Court of appeal. Those, representatives of the people, thus exerts the souverainenté national one. However the delivery of the European patents is sanctioned only by the appeal courts of the OEB.

One can thus wonder about compatibility between convention of Munich and the French constitution: isn't the fact of entrusting an administrative act to an international organization and of withdrawing her sanction from the Council of State and the Court of appeal a transfer of contrary sovereignty to the constitution?

The Secretary of State to the European Businesses Jean Pierre Jouyet declared besides with the National Assembly in September 2007 that France was to work to make OEB a " more political institution and more efficace".

Procedure

To obtain a European patent, the procedure is the following one:

; To deposit an patent application European That can be made directly at the OEB with Munich or $the Hague, or near a competent service of a Member State if its legislation allows it (for example the INPI in France).

The request must contain a request in delivery, a description being able to be accompanied by drawings, at least a Revendication and a Abrégé. It must be written in one of the three official languages of the OEB (French, English or German). However, it is possible to deposit a request in some other European languages and to deposit thereafter a translation in French, English or German.

Tax S of deposit and research must be discharged at the OEB within one month.

; Examination of deposit The receiving section of the OEB carries out a preliminary and formal examination request.

; The search for anteriority A division of research of the OEB (in general made up of an inspector) receives the request and carries out a search for anteriority. That consists with to seek among the whole of the documents published before the date of filing those which approach the most invention described in the request. The results are the subject of a research report which is sent to the applicant but who is also published with the request.

; Publication The request is published approximately 18 months after the date of filing or the date of priority if necessary.

; The examination as for the bottom It is allocated to the applicant to formulate a request for examination, and to pay the corresponding tax. An examining body of the OEB (in general made up of three inspectors) determines, within sight of the documents found at the time of research and of any other document which can appear during the procedure, which are the claims of the request which mainly satisfy the criteria of patentability of Convention on the European patent (: Innovation, inventive step and Clearness).

The applicant and the examining body exchange their written points of view. An oral procedure is also possible. The text of the claims can be modified at the time of this phase of the procedure. In the final analysis, the examining body decides the delivery or the refusal of the request.

; Delivery, possibility of opposition In the event of delivery, the patent is published. Compared to the initial request, modifications can appear consequently of the examination. It is enough then to a simple administrative formality but also, if necessary, to a translation, to obtain a national patent in one of the Member States.

Within nine month starting from the publication date of the specification, an opposition can be lodged with the OEB by one or several natural persons or morals.

In the case of an opposition, a division of opposition of the OEB (in general made up of three inspectors) studies the arguments and possible additional documents provided by each part. The communication is done mainly in writing, an oral procedure can also take place. Finally, the division of opposition decides maintenance of the patent as published, its refusal, or its maintenance in a modified form. After the nine months deadline following the publication of the patent, it is not possible any more to be opposed to a European patent. It is however possible to attack the patent in each Member State where it was transformed into national patent.

; Possibility of recourse For each decision taken by the OEB during the procedure, it is possible to deposit a Recours. This last is studied by an appeal court. The OEB comprises several appeal courts specialized by technical fields. They belong to an independent direction within the OEB. There still, the arguments are exposed written and possibly by an oral procedure.

The appeal court decides to maintain or break the decision which is the subject of the recourse. It can then return the business to the competent authority for following giving.

See too

External bond

  • Official site

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