HUBER & SCHÜSSLER
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Patents

In most European Countries there are two systems to obtain a patent. All countries have their own national system in which a patent can be applied for at a local patent office - such as the German Patent Office or UK Patent Office. If granted, the patents will be valid only in that country. Many European countries are also members of the European Patent Convention which is administered by the European Patent Office in Munich, Germany, and governs the grant of patents which are valid in a number of European countries.

The basic law governing the grant of patents has been harmonised in all European countries. According to both the national laws and the European Patent Convention, patents will be granted on technical inventions which are novel, are industrially applicable and involve an inventive step.

A novel invention is one which has not been disclosed in the prior art, i.e. everything that has been published, presented or otherwise disclosed to the public. The prior art includes documents in foreign languages disclosed in any format in any country of the world. 

An invention which is industrially applicable is one that it useful in industry or agriculture in the broadest sense of the word. The patent law, however, states that inventions which involve methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body shall not be regarded as inventions which are susceptible of industrial application. So, for example, doctors or veterinary surgeons need not worry about being sued for patent infringement. Pharmaceutical companies or producers of surgical, therapeutical or diagnostic equipment can still apply for patents for such equipment since the law further says that this provision shall not apply to products, in particular substances or compositions, for use in any of these methods.

Finally the law states that a patent will only be granted if the invention involves an inventive step. During the prosecution of the patent application - and afterwards - much of the discussion with the patent office involves the definition about whether the invention does or does not involve an inventive step. An inventive step is said to be present when a skilled person, i.e. a man or women who knows something about the technology concerned, would not find the invention to be obvious when he or she knows the relevant prior art. The various national courts and patent office appeal boards have given guidelines about how to determine whether an invention is obvious or not to the skilled person. This provision remains nonetheless one of the most difficult to decide. 

The European Patent Office - and some other national offices - have large collections of patent documents and literature articles which they search when an applicant requests a patent to see whether the invention is novel. However, even this search cannot reveal all of the prior art and therefore it is possible for another person to file an opposition to the grant of the patent and request its revocation. The other person can submit prior art or other arguments to support their case - these can also include, for example, documents filed in languages such as Japanese or Thai which are unknown to most European researchers.

 

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