Conflicts of Laws in Proceedings Before the European Patent Office

Abstract

The European Patent Convention (EPC) establishes a common system of law for the grant of European patents. A European patent is often equated to a “bundle of national patents”, as far as questions of applicable law are concerned. On closer scrutiny, the applicable conflict-of-laws rules for the various issues that are left to national law by the EPC differ substantially, and many do not fit the “bundle” analogy. This article presents a summary of the legal framework pertaining to conflicts of laws in proceedings before the European Patent Office (EPO), and reviews the state of affairs in the case law of the EPO. In the first section, the various sources of “EPC law” are identified. Next, the situation in the field of patent infringement is discussed, as an archetype of a “clean” separation between EPC law and national law. The following three sections discuss areas where conflicts of laws are most abundant: existence and capacity of (legal) persons, entitlement to patent applications, and entitlement to priority. In the concluding section, an attempt is made to derive some general rules from the case law in these areas.