5.1.2 Importance of the European Patent Convention and EU law
Despite the principle of territoriality, which limits the geographical scope of protection of patents to the country of grant, German patent law is continuously and increasingly subject to international – primarily European – influences as part of the European integration. These influences are multifaceted and reach from the granting of patents to their enforcement.
A major influence on German patent law is the European Patent Convention (EPC),4 which entered into force on October 7, 1977. The Convention not only contains substantive provisions, but is also the legal basis for the establishment of the European Patent Office (EPO), an international organization separate from the European Union (EU), with additional member states such as Norway, Switzerland, Turkey and the United Kingdom. One of the most prominent examples of this influence concerns the grant of patents. Until the EPC became effective in 1977, it was only possible to apply for German patents at the German PTO. Since then, applications for so-called European patents can also be filed with the European Patent Office.5 The application can request protection for one or – typically – more member state signatories of the EPC. According to Article 64(1) of the EPC, a European patent has the same effect as a nationally granted patent. Germany has been a signatory of the EPC since its entry into force, and many patents enforced in Germany are European patents.
The enforcement of patents in Germany is also shaped to a large extent by EU law: Directive 2004/48/EC, on the enforcement of intellectual property rights (the “Enforcement Directive”);6 and the case law of the Court of Justice of the European Union, in the context of standard-essential patents.7 The Enforcement Directive is aimed at harmonizing the EU’s legislation in the field of intellectual property and at ensuring a high, equivalent and homogeneous level of protection of intellectual property, including patent law.8 The Enforcement Directive has been implemented into German intellectual property law, including patent law, to the extent needed but is also relied upon by German courts when interpreting national law.