Entry of a PCT application to the European regional phase

The majority of European patent applications filed by applicants from outside Europe are derived from International (PCT) patent applications.

The time limit for entry of a PCT application to the regional phase in the EPO is 31 months from the earliest claimed priority date (or from the PCT filing date, if no priority is claimed).

Entry to the regional phase requires the payment of the applicable official fees . Usually, those fees are:

  • filing fee
  • designation fee
  • excess page fees
  • search fee
  • examination fee

In some cases, the search fee is reduced or waived (depending on which patent office carried out the International search), and the designation and examination fees may not be due at the time of entry to the regional phase.

Excess claims fees are relatively high in the EPO and apply to all claims in excess of fifteen, but these can be deferred; they do not need to be considered or paid at the time of regional phase entry.

Patentability in Europe

The main requirements for patentability in Europe are that the claimed invention must be novel and must involve an inventive step. The prior art against which these criteria are measured is made up of all information that was already in the public domain before the effective priority date of the claim under consideration (or the filing date where no priority is claimed or the claim is not entitled to priority). In other words, the absolute novelty standard applies.

Inventive step is broadly comparable to the requirement for non-obviousness that exists in other jurisdictions such as the USA. However, EPO examiners use the problem-and-solution approach to the assessment of inventive step. This involves identifying the difference between the claimed invention and the closest prior art, determining the technical effect associated with that difference, and in the light of that determination formulating the technical problem addressed by the invention and the solution to that problem that the invention provides. If that solution is not obvious over the prior art, then an inventive step is involved.

In addition, there are certain classes of invention that are not patentable in Europe. These include computer software and business methods, but the exclusion applies only in so far as the patent relates to that subject matter as such. There are often ways of formulating claims that circumvent the exclusion. Similarly, although methods of treatment of the human or animal body are not patentable in Europe, claims can often be reworded into an acceptable form.