Harmonisation in Europe: one step closer


Michiel Rijsdijk

Where there’s a patent, there’s always the question of how to interpret that patent. The answer seems simple: just check the patent and you’ll know what is protected and what is infringing. But reality shows that the interpretation of a patent is serious business.

For a proper elucidation of Article 69 the European Patent Convention (EPC), a judge should refer to the protocol on its interpretation: “Article 69 should not be interpreted as meaning 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 an ambiguity found in the claims.

"Nor should it be taken to mean 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 patent proprietor has contemplated.”

On the contrary, according to this protocol a judge has to take a position between these extremes, in order to “combine fair protection for the patent proprietor with a reasonable degree of legal certainty for third parties”.

EPC, harmonisation, patent interpretation