questions of infringement
and, after the nine month patent opposition
term provided for underthe European Patent
Convention has run, of validity are exclusively
matters for the national courts. However,
it should be noted that in general European
countries have amended their definition
of validity to agree with that of the European
Patent Convention so that patents granted
under national law and by the European Patent
Office should be judged by the same standard.
Additionally the European Patent Convention
does contain, however, one provision which
was intended to provide some uniformity
in this area. The provision concerns a definition
of how a claim in a European patent is to
be interpreted. Prior to the coming into
effect of the European Patent Convention,
the British and Germans maintained opposing
views on this. As originally agreed to,
the European Patent Convention had a very
simple definition of what interpretation
the claim should be. Thus, Article 69 read:
The extent of protection conferred by a
European patent or a European patent application
shall be determined by the terms of the
claims. Nevertheless, the description and
drawings shall be used to interpret the
claims.
At the diplomatic conference that gave rise
to the final form of the European Convention,
it was found that this simple wording was
interpreted in entirely different ways by
the British and the Germans. Rather than reword
the article, which had been already incorporated
into the draft text, a protocol for explaining
what this article meant was agreed upon which
reads as follows:
Article
69 should not be interpreted in the
sense that the extent of the protection
conferred by a European patent is
to be understood as that defined by
the strict, literal meaning of the
wording used in the claims, the description
and drawings being employed only for
the purpose of resolving the ambiguity
found in the claims. Neither should
it be interpreted in the sense that
the claims serve only as a guideline
and that the actual protection conferred
may extend to what, from a consideration
of the description and drawings by
a person skilled in the art, the patentee
has contemplated. On the contrary,
it is to be interpreted as defining
a position between these extremes
which combines a fair protection for
the patentee with a reasonable degree
of certainty for third parties.
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| As a practical
matter, the protocol does not yet seem
to have helped very much. The celebrated
example of this is in respect of the
European patent relating to alleged
infringement by Remington of Epilady's
patent for a hair remover for use on
ladies' legs. The British and German
courts still came to opposite conclusions
as to whether or not a claim calling
for a rotating helical spring (which
plucked hairs from the legs at one point
in its rotation and deposited them at
another point when the coils of the
spring separated) was infringed by a
rotating rubber bar with slits in it,
which performed the same function. |
In addition to the European Patent Convention
and the possible Community Patent Convention,
two other European treaties must be considered
before we look at the specifics of patent
litigation in the four major European countries.
The first is the Treaty of Rome, the basic
constitutional document of much of the European
Union, itself. When considering the question
of patent infringement in any EEC member
country, one must always bear in mind what
have come to be known, in England at least,
as "Euro defenses". Article 2
of the Treaty of Rome that set up the EEC
declares that a primary objective of the
Treaty is the establishment of a true common
market among member states. In July of 1987
the so-called "Single Act" came
into effect to try to expedite the growth
of the EEC's international market and to
lower barriers to the free flow of goods
between member states
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