European Patent Application

Grant of a European Patent is based on the same substantive requirements and the same subject matter can be protected as has been discussed in the section about general information on patents. European patent applications are examined by the European Patent Officey (EPO) having its headquater in Munich.

A European patent application provides the advantage that by a single central proceeding, patent protection for the invention in all countries of the European Union and in additional countries can be achieved. Thereby, costs for translations and attorneys can be cut.

If it is intended to file an international patent application in the future, it is advisable for a company having its registered office in Europe to file a European application as first filing, since the costs of a European patent application are lower compared to an international patent application, and the search fee for the European patent application is refunded, if the international search is carried out by the European Patent Office. Furthermore, it is advisable to file the European patent application in English in order to avoid unnecessary translation costs, if the European patent shall be in force in as many states as possible and translations shall be filed in as few states as possible.

During examination and before grant of a European patent, a German utility model can be branched off for enforcement against an infringer in Germany.

Disadvantages of a European patent application are the high official fees and the high formal requirements. The European Patent Office has, for an example, strict requirements concerning unity of an application and charges the applicant additional search fees with overly formal lack of unity objections. Contrary to the proceedings at the German Patent and Trademark Office, the proceedings at the European Patent Office follow a stricter schedule, being of particular disadvantage if it is not determined during grant proceedings how the invention will be implemented.

Further thereto, the European Patent Office unduly restricts the right to file a divisional application since 1 April 2010. Since 1 April 2010 a divisional application can only be filed up to 24 months after receipt of the first Office Action of the Examining Division of the earliest application (first parent application). Further, a divisional application can be filed up to 24 months after the Examining division has raised a particular lack of unity objection the first time for an earlier application. Accordingly, the right for filing a divisional application is considerably restricted, being also of particular disadvantage, when another or an additional aspect of the invention turns out to be of special interest at a late stage of the grant proceedings. If the time limit for filing a divisional application for a European patent application has “expired”, it is still possible as a fall back strategy to file or branch off a German utility model based on the European patent application.