Article 2 EPC and its interpretation

Article 2
European Patent

(1) Patents granted under this Convention shall be called European patents.

(2) The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides otherwise.

This does not mention a "break down into national patents". Nor a "break-down process". Not even a "bundle of individual national patents" (so-called "bundle patent"), not to mention "parts of a European patent" (part or national phase). Patents granted under the EPC are forever called "European patents". And they are effective in each of the Contracting States in which the European patent was "validated" pursuant to Article 65 and the London Agreement since 2008. Without validation, the effect in the EPC state in question is terminated (void ab initio).

A look at related sources in the network paints a peculiar picture ...

The following is taken from the EPO website, more precisely under the link "How to get a European patent", point 7:

If the examining division decides that a patent can be granted, it issues a decision to that effect. A mention of the grant is published in the European Patent Bulletin once the translations of the claims have been filed and the fee for grant and publication have been paid. The decision to grant takes effect on the date of publication.

The granted European patent is a "bundle" of individual national patents.

This text was last updated on 29 May 2013.

In this respect, the German Patent and Trademark Office (DPMA) confirms the interpretation of the European Patent Office (EPO). In the brochure "Eine Informationsbroschüre zum Patentschutz" (an information brochure on patent protection) under the headline "The European patent application" on page 26, the following is provided amongst other things:

The grant of the patent creates a bundle of individual national patents. A European patent has, in each designated state for which it has been granted, the same effect as a national patent conferred in that state and is subject to the same provisions. The national offices are in charge of patent administration until the expiry of the term of protection.

The middle sentence is correct, it is taken from Article 2 EPC, but the sentence before and after it are incorrect. Looking at it more closely, the middle sentence is also missing the relevant clause "unless the EPC provides otherwise". And the EPC provides something, for instance Article 2 or Article 69(2) or Article 70. Also important are Articles 83, 54, 56 and 63, which are not replaced by §§ 3, 4, 34(3)(3) and (4) or PatG § 20, but continue to be valid "for the lifetime of the European patent" in all validated Contracting States as European standards.

"Guidance Protecting your patent abroad" from the national UK Patent Office states the following under "European patent protection":

Your application will be processed as a single application, but once granted it becomes separate patents in the countries you designate.

These guidelines were last updated on 18 November 2014.

The Spanish Patent and Trademark Office states the following on its website:

Once granted, the European patent has the same effect in each of the countries for which it is granted as a national patent subject to the legislation of the respective country.

This is not quite right ... In actual fact it is strictly incorrect to state "granted as a national patent".

The "Fachwissen" (specialist publication) by Schlagwein (last updated: 30 March 2014) states the following under "nullity proceedings" on pages 96 and 197 ...

A nullity action can be submitted in writing at the Federal Patent Court against granted German patents or the German part of a European patent after the deadline for opposition has expired (9 months) or after termination of any opposition proceedings, pursuant to § 81 PatG against the person recorded in the register as patentee.

...

So long as the deadline for opposition against the granting of the European patent has not expired or opposition proceedings or opposition appeal proceedings are on-going, the national parts of a European patent are dependent on the granted patent. If the patent is revoked, then all the national parts cease along with it.

Trainees also use this compendium for guidance and assistance.

Extracts from the commentary regarding the "European Patent Convention" by Singer and Stauder, 4th edition, pages 15 and 16, marginal nos. 2 to 4 show interested readers a true insight into a "European character" ...

Pursuant to section 1, patents granted under the EPC are called European patents. A genuine definition is contained within this term, without this being completely highlighted in the text. The viewpoint that after grant the European patent splits up into a bundle of national patents in the designated Contracting States, may appear to be explanatory, but it is legally and systematically incorrect.

After grant, the European patent is present as a bundle of European patents, if more than one Contracting State is designated, and remains so.

...

The wording of section 2 confirms, when read more carefully, the European character of the European patent: the European patent has the same effect and is subject to the same conditions as a national patent, granted in this state; but it is not identical to a national patent. The added clause is in the true meaning the main rule, since very stringent independent European regulations for the European patent are provided in the Convention.

Passages from the commentary regarding the "European Patent Convention", Benkard, 2nd edition, page 84, point II, marginal no. 3, brilliantly rebuff the parts/break-down theory:

The European patent differs from the national protective rights granted by the patent offices of the Contracting States primarily by reason of the common granting procedure, i. e., the first "European" phase. European patents are granted in an independent European procedure; the substantive and formal patent requirements are set autonomously in the EPC.

But even after definitive granting, European patents differ from national protective rights. Their European imprint remains intact (Singer/Stauder, Article 2, marginal no. 6). A patent granted, for instance, for three EPC Contracting States is not broken down into three national patents but rather remains a European patent granted for these states.

It is therefore not appropriate to refer to a European patent effective in Germany as the "German phase" thereof.

We train people, we impart knowledge, we take responsibility ... patent offices often supply unfortunately interpreted wisdom – as in this case. Vocational schools and patent law firms offering training are directed to such official publications. It appears to be engrained: break down, conversion into national patents, national phases without a thought being given to the clear and imperative logic of Article 2 EPC that European patents remain, with effect for e. g., DE or GB or TR.

In short, EP for DE or EP for FR – and not the national DE phase of the European patent.

Many of the above-mentioned sources regarding the European patent state that the European patent is broken down into a bundle of in particular national patents after grant. This is an unfortunate interpretation of Article 2 EPC. Benkard, EPC, loc. cit., is the only reference showing the blatant incorrectness of this parts/break-down theory.

At the end of a central examination procedure, the European Patent Office grants a European patent. This European patent remains a European patent even after validation in the desired states; cf. Article 65 EPC. It is not "broken down" and it is not a bundle, but retains its effect as a European patent in the countries in which it has been validated. Only its effect is the same as if national patents had been granted, Article 64(1) EPC, and the granted patent is indeed – and remains – a European patent and permanently adopts numerous provisions from the EPC even in a so-called "national management phase".

The German Nullity Boards currently deal with the broken down German phases of European patents since the opposition deadline of the first granted EP patent expired. But they, all six Boards, do not declare that parts or national patents are invalid or partially invalid; no, they declare that European patents with effect for Germany – prior to 1990 with effect for the FRG (not the GDR) – to be invalid, citing the European patent (Article 2 EPC) and the German file reference under which the effect for Germany is managed in the German Patent and Trademark Office for annuities and transfers. "National" in terms of the level of German annuities but not in terms of European Article 69(2) and of Article 52 EPC.

Examples of the "operative provisions of the six Boards" are shown below.

Six decisions of the Patent Court

It appears to be so simple. The European patent for DE, for GB, for TR or for the EU. This is the intrinsic logic of Article 2 EPC, the patent "remains cohesive", only the effect is "bundled" with the Unitary Patent (upon request) for the EU (ideally if ES, PL, IT and HR decide to join in with this increased co-operation). This effect on all the EU states will form a Common Effect in one region.

The Unitary Patent (UP) thus does not cement the idea of broken down EP patents or the national phases or parts thereof. The opposition or restricting procedure of the EPC also does not provide this. It relates to European patents as such and a break down does not occur even after the opposition procedure. Article 2 EPC remains in force. No break down, no bundle of national patents and no parts or phases of European patents.

Here's a thesis: since 1978 no granted European patent has ever been broken down or bundled into national patents. We are prepared to listen to antitheses in order to form syntheses. This is particularly true now, when the Unitary Patent requires an explanation as to why the break-down process does not occur and never did occur. The UP lives on because of the fact that the patent is never broken down into parts and its Common Effect is built thereon. You need to say "Well done!" to the designers of the UP who have absolutely interpreted and applied Article 2 correctly.

With the upcoming UP as EP (having common effect), the bundle theory, the national phases and the break-down process should finally be laid to rest. They never occurred and they are also not needed, not even for "colourful explanation".

Last updated: 13 March 2015