EPO
EUROPEAN COMMUNITY AND EUROPEAN PATENT OFFICE
CPC - CONVENTION FOR THE EUROPEAN PATENT FOR THE COMMON MARKET
EU-CVN
6/9

Article 44

The European patent application as an object of property

1.       Articles 38 to 42 shall apply mutatis mutandis to a European patent application in which the Contracting States are designated, the reference to the Register of Community Patents being understood as referring to the Register of European Patents provided for in the European Patent Convention.

2.       The rights acquired by third parties in respect of a European patent application referred to in paragraph 1 shall continue to be effective with regard to the Community patent granted upon that application.

CHAPTER V

COMPULSORY LICENCES IN RESPECT

OF A COMMUNITY PATENT

Article 45

Compulsory licences

1.       Any provision in the law of a Contracting State for the grant of compulsory licences in respect of national patents shall be applicable to Community patents. The extent and effect of compulsory licences granted in respect of Community patents shall be restricted to the territory of the State concerned. Article 28 shall not apply.

2.       Each Contracting State shall, at least in respect of compensation under a compulsory licence, provide for a final appeal to a court of law.

3.       As far as practicable national authorities shall notify the European Patent Office of the grant of any compulsory licence in respect of a Community patent.

4.       For the purposes of this Convention, the term 'compulsory licences' shall be construed as including official licences and any right to use patented inventions in the public interest.

Article 46

Compulsory licences for lack or insufficiency of exploitation

A compulsory licence may not be granted in respect of a Community patent on the ground of lack or insufficiency of exploitation if the product covered by the patent, which is manufactured in a Contracting State, is put on the market in the territory of any other Contracting State, for which such a licence has been requested, in sufficient quantity to satisfy needs in the territory of that other Contracting State. This provision shall not apply to compulsory licences granted in the public interest.

Article 47

Compulsory licences in respect of dependent patents

Any provisions in the law of a Contracting State for the grant of compulsory licences in respect of earlier patents in favour of subsequent dependent patents shall be applicable to the relationship between Community patents and national patents and to the relationship between Community patents themselves.

PART III

RENEWAL, LAPSE, LIMITATION AND REVOCATION

OF THE COMMUNITY PATENT

CHAPTER I

RENEWAL AND LAPSE

Article 48

Renewal fees

1.       Renewal fees in respect of Community patents shall be paid to the European Patent Office in accordance with the Implementing Regulations. These fees shall be due in respect of the years following the year referred to in Article 86 (4) of the European Patent Convention, provided that no renewal fees shall be due in respect of the first two years, calculated from the date of filing of the application.

2.       When a renewal fee has not been paid on or before the due date, the fee may be validly paid within six months of that date, provided that the additional fee is paid at the same time.

3.       Any renewal fee in respect of a Community patent falling due within two months after the publication of the mention of the grant of the European patent shall be deemed to have been validly paid if it is paid within that period. No additional fee shall be charged.

Article 49

Surrender

1.       A Community patent may be surrendered only in its entirety.

2.       Surrender must be declared in writing to the European Patent Office by the proprietor of the patent. It shall not have effect until it is entered in the Register of Community Patents.

3.       Surrender will be entered in the Register of Community Patents only with the agreement of any third party who has a right in rem recorded in the Register or in respect of whom there is an entry in the Register pursuant to Article 23 (4), first sentence. If a licence is recorded in the Register, surrender will be entered only if the proprietor of the patent proves that he has previously informed the licensee of his intention to surrender; this entry will be made on expiry of the period laid down in the Implementing Regulations.

Article 50

Lapse

1.       A Community patent shall lapse:

(a)

at the end of the term laid down in Article 63 of the European Patent Convention;

(b)

if the proprietor of the patent surrenders it in accordance with Article 49;

(c)

if a renewal fee and any additional fee have not been paid in due time.

2.       The Community patent shall lapse on the date mentioned in Article 53 (4) to the extent that it is not maintained.

3.       The lapse of a patent for failure to pay a renewal fee and any additional fee within the due period shall be deemed to have occurred on the date on which the renewal fee was due.

4.       The lapse of a Community patent shall, if necessary, be decided by the Patent Administration Division or, if proceedings in respect of that patent are pending before it, a Revocation Division.

CHAPTER II

LIMITATION PROCEDURE

Article 51

Request for limitation

1.       At the request of the proprietor, a Community patent may be limited in the form of an amendment to the claims, the description or the drawings. Limitation in respect of one or some of the Contracting States may be requested only where Article 36 (1) applies.

2.       The request may not be filed during the period within which an opposition may be filed or while opposition proceedings or revocation proceedings are pending.

3.       The request shall be filed in writing with the European Patent Office. It shall not be deemed to have been filed until the fee for limitation has been paid.

4.       Article 49 (3) shall apply mutatis mutandis to the filing of the request.

5.       Where an application for revocation of the Community patent is filed during limitation proceedings, the Revocation Division shall stay the limitation proceedings until a final decision is given in respect of the application for revocation.

Article 52

Examination of the request

1.       The Revocation Division shall examine whether the grounds for revocation mentioned in Article 56 (1) (a) to (d) would prejudice the maintenance of the Community patent as amended.

2.       In the examination of the request, which shall be conducted in accordance with the Implementing Regulations, the Revocation Division shall invite the proprietor of the patent, as often as necessary, to file observations, within a period to be fixed by the Revocation Division, on communications issued by itself.

3.       If the proprietor of the patent fails to reply in due time to any invitation under paragraph 2, the request shall be deemed to be withdrawn.

Article 53

Rejection of the request or limitation of the Community patent

1.       If, following the examination provided for in Article 52, the Revocation Division is of the opinion that the amendments are not acceptable, it shall reject the request.

2.       If the Revocation Division is of the opinion that, taking into consideration the amendments made by the proprietor of the patent during the limitation proceedings, the grounds for revocation mentioned in Article 56 do not prejudice the maintenance of the Community patent, it shall decide to limit the patent accordingly, provided that:

(a)

it is established, in accordance with the Implementing Regulations, that the proprietor of the patent approves the text in which the Revocation Division intends to limit the patent;

(b)

a translation of all amendments to the patent specification in one of the official languages of each of the Contracting States which does not have as an official language the language of the proceedings is filed within the time limit prescribed in the Implementing Regulations;

(c)

the fee for the printing of a new specification is paid within the time limit prescribed in the Implementing Regulations.

3.       If a translation is not filed in due time or if the fee for the printing of a new specification is not paid in due time, the request shall be deemed to be withdrawn, unless these acts are done and the additional fee is paid within a further period as prescribed in the Implementing Regulations.

4.       The decision to limit a Community patent shall not take effect until the date on which the Community Patent Bulletin mentions the limitation.


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