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

PART VII

IMPACT ON NATIONAL LAW

Article 75

Prohibition of simultaneous protection

1.       Where a national patent granted in a Contracting State relates to an invention for which a Community patent has been granted to the same inventor or to his successor in title with the same date of filing, or, if priority has been claimed, with the same date of priority, that national patent shall be ineffective to the extent that it covers the same invention as the Community patent, from the date on which:

(a)

the period for filing an opposition to the Community patent has expired without any opposition being filed;

(b)

the opposition proceedings are concluded with a decision to maintain the Community patent; or

(c)

the national patent is granted, where this date is subsequent to the date referred to in subparagraph (a) or (b), as the case may be.

2.       The subsequent lapse or revocation of the Community patent shall not affect the provisions of paragraph 1.

3.       Each Contracting State may prescribe the procedure whereby the loss of effect of the national patent is determined and, where appropriate, the extent of that loss. It may also prescribe that the loss of effect shall apply as from the outset.

4.       Prior to the date applicable under paragraph 1, simultaneous protection by a Community patent or a European patent application and a national patent or a national patent application shall exist unless any Contracting State provides otherwise.

Article 76

Exhaustion of the rights conferred by a national patent

1.       The rights conferred by a national patent in a Contracting State shall not extend to acts concerning a product covered by that patent which are done within the territory of that Contracting State after that product has been put on the market in any Contracting State by the proprietor of the patent or with his express consent, unless there are grounds which, under Community law, would justify the extension to such acts of the rights conferred by the patent.

2.       Paragraph 1 shall also apply with regard to a product put on the market by the proprietor of a national patent, granted for the same invention in another Contracting State, who has economic connections with the proprietor of the patent referred to in paragraph 1. For the purpose of this paragraph, two persons shall be deemed to have economic connections where one of them is in a position to exert a decisive influence on the other, directly or indirectly, with regard to the exploitation of a patent, or where a third party is in a position to exercise such an influence on both persons.

3.       The preceding paragraph shall not apply in the case of a product put on the market under a compulsory licence.

Article 77

Compulsory licences in respect of national patents

Article 46 shall apply mutatis mutandis to the grant of compulsory licences for lack or insufficiency of exploitation of a national patent.

Article 78

Effect of unpublished national applications or patents

1.       Where Article 36 (2) applies, the Community patent shall be ineffective in the Contracting State concerned to the extent that it covers the same invention as the national patent application or patent.

2.       The procedure confirming that, pursuant to paragraph 1, the Community patent is ineffective in the Contracting State shall, in that State, be that according to which, if the Community patent had been a national patent, it could have been revoked or made ineffective.

Article 79

National utility models and utility certificates

1.       Articles 36, 75 and 76 shall apply to utility models and utility certificates and to applications for utility models and utility certificates in the Contracting States whose laws make provision for such models or certificates.

2.       If a Contracting State provides in its law that a person may not exercise the rights conferred by a patent so long as there exists a utility model having an earlier date of filing or, where priority has been claimed an earlier date of priority, the same shall, notwithstanding paragraph 1, apply also to the Community patent in that State.

PART VIII

TRANSITIONAL PROVISIONS

Article 80

Application of the Convention on Jurisdiction and Enforcement

The provisions of the Convention on Jurisdiction and Enforcement rendered applicable by the preceding Articles shall not have effect in respect of any Contracting State for which that Convention has not yet entered into force until such entry into force.

Article 81

Option between a Community patent and a European patent

1.       This Convention shall, subject to paragraph 3, not apply to a European patent application filed during a transitional period nor to any resulting European patent provided that, within the time limit prescribed in the Implementing Regulations, the applicant files with the European Patent Office a statement indicating that he does not wish to obtain a Community patent and identifying the Contracting States the designation of which is to be maintained. The statement shall not be deemed to be filed until after the prescribed fees have been paid. The statement may not be withdrawn.

2.       Article 54 (3) and (4) of the European Patent Convention shall apply where a European patent application in which the Contracting States are designated or a Community patent has a date of filing or, where priority has been claimed, a date of priority later than that of a European patent application in which one or some of the Contracting States are designated. In the event of limitation or revocation of the Community patent on this ground, limitation or revocation shall be pronounced only in respect of the Contracting States designated in the earlier European patent application as published.

3.       Articles 75 to 77 and 79 shall apply to a European patent as referred to in paragraph 1, the references in Articles 75 and 79 to a Community patent and the references in Articles 76 and 77 to a national patent being understood as references to such a European patent.

4.       The transitional period referred to in paragraph 1 may be terminated by decision of the Council of the European Communities, acting on a proposal from the Commission of the European Communities or from a Contracting State.

5.       The decision referred to in paragraph 4 shall require unanimity.

Article 82

Subsequent choice of a Community patent

This Convention shall apply to a European patent granted in respect of a European patent application in which all the Contracting States are designated and which is filed prior to the entry into force of this Convention, provided that prior to the expiry of the time limit mentioned in Article 97 (2) (b) of the European Patent Convention the applicant files with the European Patent Office a written statement that he wishes to obtain a Community patent.

Article 83

Reservation in respect of compulsory licences

1.       Any signatory State may, at the time of signature or when depositing its instrument of ratification, declare that it reserves the right to provide that Articles 46 and 77 shall not apply within its territory to Community patents or to European patents granted for, or to national patents granted by, that State.

2.       Any reservation made by a signatory State under paragraph 1 shall have effect until the end of the 10th year at the latest after the entry into force of the Agreement relating to Community Patents. However, the Council of the European Communities may, acting by a qualified majority on a proposal from a signatory State, extend the period in respect of a signatory State making such a reservation by not more than five years. This majority shall be that specified in the second indent of the second subparagraph of Article 148 (2) of the Treaty establishing the European Economic community.

3.       Any reservation made under paragraph 1 shall cease to apply when common rules on the granting of compulsory licences in respect of Community patents have become operative.

4.       Any signatory State that has made a reservation under paragraph 1 may withdraw it at any time. Such withdrawal shall be made by notification addressed to the Secretary-General of the Council of the European Communities and shall take effect one month from the date of receipt of such notification.

5.       Termination of the effect of the reservation shall not affect compulsory licences granted before the date on which the reservation ceased to have effect.

Article 84

Other transitional provisions

1.       Articles 159, 161 and 163 of the European Patent Convention shall apply mutatis mutandis, subject to the following:

(a)

the first meeting of the Select Committee of the Administrative Council shall be on the invitation of the Secretary-General of the Council of the European Communities;

(b)

the term 'Contracting State' shall be understood as meaning the States parties to this Convention.

2.       Notwithstanding paragraph 1 (b), Article 62 (2) shall apply.

PART IX

FINAL PROVISIONS

Article 85

Implementing Regulations

1.       The Implementing Regulations shall be an integral part of this Convention.

2.       In the case of conflict between the provisions of this Convention and those of the Implementing Regulations, the provisions of this Convention shall prevail.


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