European patent costs were historically prohibitively expensive because applicants had to apply for individual patents in each nation until the 1978 European Patent Convention (EPC) established the European Patent Office (EPO) to administer a unified process. Under the Patent Cooperation Treaty (PCT), 38 countries now recognize EPO-approved applications, dramatically lowering European patent costs.

Should I File A National, European, or International Application?

It is important to understand that patents issued by the United States Patent & Trade Office (USPTO) are only valid in the U.S. and patents granted by the EPO are only recognized by nations that have signed onto the PCT.

Therefore, securing exclusive global rights to a new product can often require applying for patents in individual nations across the world. Under the guidelines of the 1970 Patent Cooperation Treaty (PCT), however, the World Intellectual Property Organization (WIPO) can issue so-called “International Patents” that give inventors a first step in securing exclusive rights to their products in PCT signatory nations.

Technically, there is no such thing as an “International Patent,” although a PCT application will establish a filing date in participating nations for a new invention, giving it precedence over potential competitors. As of March 2017, there were 152 nations signed onto the PCT. UpCounsel offers a step-by-step primer on how to apply for an International Patent.

Although a European Patent secured through the EPO is recognized in 38 PCT nations, investors can still apply for national patents in every individual European country. If, for instance, you only want exclusive rights to their product in Great Britain, you can apply for a United Kingdom patent. If you are seeking patent protection in only a few countries, the best tactic may be to apply directly to the national patent offices of individual nations. for a national patent to each of the national offices.

If, however, you want broader patent protection -- the general rule of thumb is in three or more European nations -- applying for a European patent is a less expensive way to do so rather than obtaining individual national patents in EPC countries. This is especially true when considering a European Patent bestows the same protections that a national patent does in EPC countries.

What Do I Have To Do To Apply For A European Patent?

To apply for a European Patent, it is first important to understand what, exactly, constitutes a “patentable invention.” The EPO defines a “patentable invention” under Article 52(1) of the EPC: "European patents shall be granted for any inventions, in all fields of technology, providing that “they are new, involve an inventive step, and are capable of industrial application.”

To view a European Patent application, go to the EPO’s webpage where the varied forms are available with all the accompanying details of what is necessary to proceed. The EPO’s main office is in Munich with branches in Berlin and The Hague.

Cost of a European Patent Application

European Patent <a data-cke-saved-href="http://www.epo.org/applying/forms-fees.html" href="http://www.epo.org/applying/forms-fees.html" rel="nofollow" target="_blank>fees must be paid in Euros. No other currencies are accepted, nor are credit card payments. The fees are adjusted every two years. They include:

  • Filing fee: €210 Euros to file a paper application, €120 to file online.
  • Search fee: €1,300
  • Claims fee: If you are filing a claim challenging or based on a previous application, €235.

The filing and search fees that initiate the process total €1,420 to €1,510 Euros and must be paid within 30 days of filing the application. There are subsequent stages in the review process and, ultimately, it cost as much as €32,000 Euros to negotiate the EPO’s patent process, particularly since, as in the U.S., you will likely need the assistance of technical experts and a patent attorney.

EPO fees can be paid by bank transfer directly to the Munich EPO’s account. Some active patent applicants open a deposit account with the EPO and use an Online Fee Payment service.

The Procedure

European Patents are legally binding for 20 years from their filing dates. The EPO’s patent procedure is made up of two main stages. The first is a “formalities examination” of the actual application and a preliminary opinion on its validity. The second stage is a “substantive examination.”

EPO patent applications are published in English, French or German. The first step in seeking a European Patent from the EPO is the examination on filing to ensure it includes the following information:

  • A formal declaring that you are seeking a European Patent
  • Specifics in clearly identifying who you are
  • A description of what you want to patent, the invention itself  
  • Abstracts, drawings, other support materials
  • A reference to previously filed applications if applicable
  • Acknowledgement of any claims you have filed in relation to other EPO patents in the past

The initial application will be examined for form and content, its support materials, including abstracts and drawings, the formal designation of the inventor, the name of any professional representatives such as a patent attorney, and an assessment of fees that are due within 30 days of acceptance of the application.

The next stage in the process is a European Patten search. The EPO will send its search to you with a copy of any documents and other materials that could cloud your patent claim. The EPO will issue an initial opinion at this point indicating if it believes the patent meets the EPC’s criteria.

Your application is then published with the EPO’s search report for 18 months after the date of the initial filing. You have six months during this time to determine if you wish to pursue the patent application. If the answer is yes, you submit a request for substantive examination. When your application is published, the EPO grants your invention provisional protection.

The substantive examination usually involves three examiners, including a lead agent who will maintain contact with the applicant through the process. The three will submit their assessment to the EPO’s entire examination division, which ultimately makes a collective ruling.

When the EPO’s examination division grants a patent, it publishes the determination in the European Patent Bulletin. The patent goes into effect the day it is published. After formal publication, the patent must be validated in the PCT’s 38 member nations. In some counties, the newly-minted patent owner may have to file specifications in native languages in national patent offices.

There is an opportunity at this juncture for anyone with claims against your patent to come forward. If a third party contests the patent, they have up to nine months after the patent in published in the European Patent Bulletin to state their opposition. These claims are handled by the EPO’s opposition division, which also includes scrutiny from three examiners.

How to Object to a European Patent Application

The remarks must be filed in writing in French, English, or German. There aren’t any fees for presenting such remarks.

Anyone can submit observations regarding the patentability of a proposed invention and can file objections directly with the EPO. Doing so does not make you a party to official EPO patent proceedings but your comments will be part of the public record. You will not be informed by the EPO about the further outcome of the patent grant proceedings.

Observations and objections can be posted up to nine months after the patent is published in in the European Patent Bulletin. The EPO states that any “notice of opposition must be filed in a written reasoned statement” and must “state at least one ground for opposition under Article 100 EPC and indicate the facts, evidence and arguments presented in support of the ground(s). Otherwise the notice of opposition will be rejected as inadmissible.”

The best tact for an individual who wish to offer observations or state opposition to a pending European Patent is to do so with Form 2300, which is available free of charge from the EPO.

Do National Patent Applications Give European Patent Applications Priority?

If you have filed an application seeking a patent in any nation that is a signatory of the Paris Convention for the Protection of Industrial Property, a patent compact that includes 176 nations around the globe, or have submitted a patent application to any member of the 160-nation World Trade Organization, you may have a priority claim when filing for a European patent of the same new product.

To take advantage of this priority status, make sure you file the claim priority within 12 months of filing the first application anywhere else. If the patent application was filed in any of the 38-nations in the EPC, it’s a good ideal to name the nation you are filing in.

How Long Is The ‘European Phase’ of an International Patent Application?

To initiate the process for a European Patent during the “European phase” of an International Permit application, you must fulfil certain minimum requirements within 31 months of the filing date or, if priority has been claimed, the earliest priority date

Scams, Patent Trolls: EPO Advice & Tips

Beware of fake invoices from firms and individuals requesting the payment of fees for the registration or publication of a patent application. The EPO offers a number of tips and advice in how to avoid being the victim of a scam.

Among the reasons why the patent process in Europe, as in the United States, can be so elongated, other than the scientific intricacy involved, is the product’s promising market potential. That is good news, if course, but it can also be bad news. Any potential new product that could affect an existing market will draw the attention and scrutiny from those who now control the market. Rival competitors will often do all they can to kill a pending patent in the cradle, which is in the EPO, or in the courts.

A patent application can be derailed by any one of an array of minor mistakes. Even the most thoroughly precise applications can be nixed by patent examiner’s ruling to the EPO’s examining division. Even issued patents get challenged by rival inventors and potential competitors in federal courts.

The cost of revising applications, defending patents, challenging lawsuits and maintaining the integrity of the patent all require the assistance of professionals, including EPO-registered patent attorneys.

In many ways, the system is rigged against the individual, independent inventor who can follow all the rules and scrupulously adhere to the procedural requirements of the application process, even overcome technical nitpicking and bureaucratic setbacks, only to be challenged in court by a corporate entity with the unlimited resources to suppress a new product from ever getting to the market, essentially bankrupting an individual who had the temerity to have a good idea.

If you need help determining how to proceed in submitting a European Patent application, you can post your legal needs on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.