To address these “abusive” practices, as of April 2010, the EPO will require that a divisional application be filed either:

• within two years of the first communication from the Examining Division regarding the earliest application in a family; or
• within two years of any objection from the Examining Division regarding a lack of unity of invention for any application within the family.

In Europe, a divisional application is the only allowed form of “continuing” application,  so the new rules will force patent applicants to identify discrete patentable inventions disclosed within their specification somewhat earlier than the current rules allow. The new rules may also make it difficult for patent applicants to spread out prosecution costs in Europe.

It turns out that our neighbors across the Atlantic are not all particularly forthcoming on letting the public know if a patent is still in force. Two countries in particular are of interest. Apparently, in France, to determine if a patent is still in force you need to pay for “the issue of a report on the state of annual fee payments.” To add insult to injury, you will need to hire a French firm to do so. Sacre Bleu! This really changes the dynamic of small companies trying to determine if they have freedom to operate in a crowded art space.

But wait, there’s more! In Italy they do not even keep track of maintenance fees. So much so, that they abolished maintenance fees in 2005 (but then brought them back in 2007). In Italy, the patent holder has the responsibility for proving that they have paid their maintenance fees. In effect, it is impossible to find out if a patent is in force in Italy without alerting the patent holder. Mama Mia! What are they thinking over there?

I will never take my links to the Official Gazette and Maintenance Fee payment site for granted again.

What is it doing?

The European Patent Office (“the EPO”) is increasing its fees in a number of important respects. Most dramatically, the EPO is imposing large new fees for an application that has claims in excess of fifty.

For each claim over fifty, the EPO will charge 500 Euros per claim starting on April 1st, 2009. Read the official notice here.

What are the implications for me?

While the fee increases may not seem dramatic when considered on a per-claim charge, an application with, say, sixty five claims will require an additional fee of $9,534.40 in today’s dollars.

Of note, this follows last year’s dramatic fee increases for applications with more than fifteen claims. (200 Euros for each claim over fifteen.)

Accordingly, if you are considering applying for patent protection in Europe, you may want to consult a patent attorney soon to determine if your application warrants more than the threshold number of claims, and therefore should be expedited to meet the deadline.

What is the EPO?

The EPO is an agency that handles patent applications on behalf of the signatory countries to the European Patent Convention. The EPO does not issue “international patents” because such a thing does not exist. However, a patent granted through the EPO does result in a “bundle” of patents in contracting nations.

The EPO is also different from the “PCT.” The PCT is the Patent Cooperation Treaty which generally provides a procedural framework (administered by the World Intellectual Property Organization) for, among many other things, establishing a priority date of applications.