The patent system in Europe

The main legal sources determining the framework for patent protection in Europe are the European Patent Convention and the EU Directive 98/44 on the legal protection of biotechnological inventions.


What is patent protection?

Patent protection is a private right granted by the State for an invention in any field of technology allowing its holder to prevent third parties, amongst others, from making, using or selling the invention without his authorization during a certain period of time, in exchange for the disclosure of the invention.

By obtaining patent protection on an invention the right holder gets into the situation of controlling his invention for a period of 20 years (starting from the filing of the application). As all IP rights patent protection is also territorial meaning that it provides protection only on a given territory.

The scope of a patent on an invention is determined by the so-called patent claims.

How is patent protection obtained?

To be eligible for patent protection an invention (which may be a process, a product or a specific use) has to meet the patentability requirements, in other words, it has to be new, inventive and needs an industrial application. Furthermore, the documentation of the application has to describe the invention in a manner which enables other persons skilled in the art to reproduce the invention.

As already mentioned patent protection provides a territorial right but the application process and the granting procedure to get protection can be centralized. An application for patent protection can be submitted either to a national patent office or directly to the European Patent Office (EPO). In the application the countries (among the members of the European Patent Convention) where patent protection is sought have to be designated. Following an examination of the formalities and an initial search report the application is published. This is normally 18 months after the date of filing. As of this moment we talk about “published applications” and as of this moment a European patent application confers provisional protection on the invention in the countries designated in the application. At the same moment the substantial examination of the application, i.e. the examination whether the invention meets the patentability criteria, is launched. The decision in the end is taken by the examining division of the patent office and the information regarding the grant of a patent is published in its official bulletin. As of this moment we talk about a granted patent. Within 9 months following the grant a patent can be opposed before the EPO by any third party if they believe that the patent should not have been granted. Once the opposition period is over, the patent lives its individual life in every country where it has been granted but can always be limited or invalidated by national courts if challenged.

To find out more about the application and granting process please refer to the EPO website

Patent protection for plant-related inventions

According to the abovementioned laws plant varieties as such as well as essentially biological processes for the production of plants are expressly excluded from patent protection. Nevertheless, as a result of the specific nature of plant-related patents – plant varieties may fall under the scope of certain patents as the current patent system in Europe allows patent protection on inventions which may encompass several plant varieties. This may be the case for instance of a patent on a specific trait that occurs in several plant varieties. Using such plant varieties for further breeding and development is not generally exempted under patent laws. However such acts are exempted under French, German and Swiss patent laws and will be exempted in the future in the case of so-called European patent with unitary effect . In other countries these acts fall within the scope of patent protection and therefore require prior authorization of the patent holder. As to commercialization of the newly bred plant variety, it will in any case continue to be subject to the conditions determined by the patent holder if the plant variety still falls under the scope of the patent.

To learn more about ESA’s position on IP protection for plant-related inventions please click here