The text of the European Patent Convention (EPC) was revised at the Diplomatic Conference of Munich (November 20-29, 2000). By 1 September 2001, the end of the period for signature, the Revision Act had been signed by 17 contracting states. Those which have not yet done so, and new states acceding to the EPC, can sign the Revision Act up to the date of its entry into force.
The "EPC 2000 " (the revised text including amendments) will enter into force two years after ratification by 15 contracting states, or on the first day of the third month following ratification by the last of all contracting states - whichever is the earlier.
Among the proposed amendments, the followings can be underlined :
1) Invention definition
Article 52(1) was amended in order to specify that a European patent can be granted for an invention "in all fields of technology", by bringing it into line with Article 27.1, first sentence, of the TRIP's Agreement.
The examples of non-inventions such as discoveries, scientist theories, aesthetic creations, computer programs have been maintained.
2) The software case
In the draft of revision of the EPC, it was foreseen that software would no more be explicitely excluded from the patentability. However, this amendment was not made. It has been asked to the Board of Directors to prepare a new Diplomatic Conference in order to take into account in particular the consultations open until the end of December 2000.
3) Shifting of Article 52(4) contents : unpatentability of treatment and diagnostic methods
Article 52(4) which prohibits the patentability of the methods for treatment of the human or animal body by surgery or therapy and diagnostic methods applied to the human or animal body has been shifted.
This prohibition appears now in Article 53(c).
4) "Ordre Public" and morality
Article 53 (Exceptions to patentability) excluded the "inventions the publication or exploitation of which would be contrary to "ordre public" or morality".
This exclusion has been amended in order to be brought into line with both Article 27.2 of the TRIP's Agreement and with Article 6.1 of Directive 98/44/EC relating to the legal protection of biotechnology inventions.
Are excluded from patentability only the inventions the "exploitation" (no more the publication) of which would be contrary to "ordre public" or morality.
The President of the EPO affirms that this amendment will not change anything in the EPO's current practice.
5) Novelty
Article 54(4) was deleted.
At present time, a European patent application B can be anteriorized with regard to novelty by a European patent application A which was earlier filed but which was not yet published, only in the contracting states which were designated in both A and B.
Now, the European patent application B will be anteriorized in all the designated states, independently from those of A.
6) Designation of the states
Deleting of Article 54(4) came from the amendment of Article 79 (which is in accordance with the amendment of the Request for Grant form). Indeed, from this amendment, a European patent application is deemed to designate all the Contracting States. The applicant may withdraw designations later.
7) Second therapeutic application
Article 54(5) was amended and becomes new Article 54(4).
Substances or compositions used in a medical method are deemed to be new if the use is not included in the state of the art.
This new redaction shall permit to protect a new medical use of a substance or composition already known as a medecine without claiming the "use of a substance or composition for the manufacture of a medicament for a specified new and inventive therapeutic application".
8) Responsability of the Enlarged Board of Appeal
Article 22 : The Enlarged Board of Appeal shall now "decides on petitions for review of decisions of the Boards of Appeal" according to Article 112 bis.
9) Agreements between the Contracting States
Article 149 bis was added. It is the result of the 1999 Intergovernmental Conference of Paris, the purpose of which was to reduce the cost of the European patents.
The result of this Conference was a proposal of agreement relating to the application of Article 65 (translation of the European patent) and an optional protocole on the litigations settlement.
In order to be able to introduce later such agreements between the EPC Contracting States, new Article 149 bis introduces for Example a European patent court and an entity common to the Contracting States to deliver opinions on issues of European or harmonised national patent law.
10) Priority right
The possibility of claiming the priority of a patent application will no more be restricted to the States parties to the Paris Convention or having signed a bilateral agreement with the European Patent Office. In fact, according to the new Article 87, this right will be also granted to the countries members of the World Trade Organization (WTO).
In June 2002, the countries members of the WTO but not parties to the Paris Convention are : Angola, Brunei Darussalam, Dominican Republic, Fiji, Kuwait, Republic of Myanmar, Maldive Islands, Namibia, Pakistan, Salomon Islands and Thaïland.
11) Request for limitation or revocation
Articles 105 bis, 105 ter and 105 quater were added. They relate to a prosecution of limitation or revocation by the titular of the granted European patent, then such a limitation or revocation will take effect in all the designated states on the date on which the European Patent Bulletin mentions the decision.
12) Complete text
All the documents of the diplomatic conference may be download from the EPO
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