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The development and adoption of the Eurasian Patent Convention is a consequence of objective processes of patent integration that are taking place in the post-Soviet Eurasian territory.
Real steps towards the creation of the Eurasian patent system were made in 1993.
An Agreement on measures concerning the protection of industrial property and the establishment of the Interstate Council on the Protection of Industrial Property was signed at the meeting of the CIS Prime Ministers on March 12, 1993, in Moscow. In particular, Article 1 of this Agreement called for the development of an open-type Convention on industrial property protection. Soon, however, the idea of developing a full-scale Convention that would include a number of industrial property objects, had to be turned down. A decision was made, at the first stage of the creation of the interstate system of legal protection of industrial property, to limit the integration just to protecting inventions.
The Eurasian Patent Convention was officially signed on Sept. 9, 1994, in Moscow, at the meeting of the Council of Prime Ministers of the CIS member states. The Convention was signed by the Prime Ministers of Azerbaijan, Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, and the Ukraine.
With the August 12, 1995, implementation of the Eurasian Patent Convention (EAPC), the regional patent organization of two continents - Europe and Asia - was created. As of January 1, 2000, the EAPC member states (Contracting States) are: Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, and Turkmenistan.
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The Eurasian Patent Convention is an open-type one, which is stipulated in Article 26; thus it is not limited to the CIS countries only. EAPC membership is open to any United Nations member that is bound by the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty, and is located in Europe or Asia. This conclusion is also confirmed by the materials of the Second (First Ordinary) session of the Administrative Council of the Organization (November 30 - December 1, 1995), which states that the Eurasian Patent Organization is an open international (intergovernmental) organization, and not a part of the CIS organizational structure.
The Eurasian Patent Office (EAPO) started receiving and examining Eurasian applications on January 1, 1996.
The use of EAPC in the territory of member states provides the following benefits:
The Preamble to the Eurasian Patent Convention declares the intention on the part of the Contracting States to establish an interstate system in the field of the protection of inventions based on a common patent, and points out that the Convention is a special agreement within the meaning of Article 19 of the Paris Convention for the Protection of Industrial Property of March 20, 1883 and a regional patent agreement within the meaning of Article 45 (1) of the Patent Cooperation Treaty of June 19, 1970.
Article 1 of the EAPC calls for the establishment of the Eurasian Patent System by the Contracting States. How does it relate to national patent systems? Section 1 of Article 1 of EAPC stipulates that the Contracting States maintain their completely sovereignty to develop their national systems for protection of inventions.
National patent systems are completely autonomous from the Eurasian patent system, with the exception of those powers related to the Eurasian patents that have been transferred by the member states to the Eurasian Patent Organization according to EAPC.
It follows that the Eurasian Patent Organization is a regional international organization of supranational character, the main objective of which is to administer the functioning of the Eurasian patent system and the grant of common Eurasian patents. This conclusion is also confirmed by Section 5 of Article 2 of the EAPC, according to which the Eurasian Patent Organization is an intergovernmental organization.
These circumstances indicate that the Organization is, by virtue of its nature, subject to international law, with all the legal consequences that follow. The main one of these is international legal personality, i.e. the ability to participate in international relations that are regulated by the international law. The Organization, same as other international organizations, is a collective personality subject to the international law because its rights and obligations are the rights and obligations of its member states collectively taken.
According to Section 5, Article 2 of the EAPC, the Organization has legal entity status. In each of the Contracting States the Organization enjoy the legal capacity attributed to legal entities in conformity with the national law of that State, and thus can acquire and dispose of movable property or real estate and may defend its rights in court. At the same time it needs to be noted that the Organization is not the legal entity of the state where its headquarters are located, or of any other member state. Thus the Eurasian Patent Organization, as any other international organization, does not fall under the jurisdiction of the state in which its headquarters are located, and is not controlled by governing authorities. This assures that an international organization is fully protected against the possibility of becoming dependent on one or a group of member states.
In order to achieve that, an agreement is signed between the state where the organs of an international organization are located and the organization itself, according to which the host state provides to the organization office space, appropriate privileges, and immunities required for the effective pursuit of the organization's objectives and goals. In the Eurasian patent system it is the Agreement between the Russian Federation Government and the Eurasian Patent Organization on the headquarters of the Eurasian Patent Organization, which came into effect on April 15, 1998.
The Organization's official language is Russian, and its headquarters are located in Moscow.
One of the organs of the Eurasian Patent Organization is the Administrative Council. It is a representative organ of a kind, with each one of the Contracting States represented there. It broad goal is the monitoring of the activity of the Eurasian Patent Office.
The Eurasian Patent Office (EAPO) plays the role of the Eurasian Patent Organization's executive body. According to Article 4 of the EAPC "The Eurasian Office shall carry out all administrative tasks of the Organization. It shall be the secretariat of the Organization". The Eurasian Office is headed by the President, who is the chief executive of the Organization.
The Eurasian Patent Convention, which is an act of the highest legislative force in the system of the Organization's normative acts, is the legislative basis of the Eurasian patent system.
The Eurasian Patent Convention itself has a "framework" character, i.e. it defines the core norms that are then expanded and refined in other normative acts, and primarily in the normative acts approved by the Organization's Administrative Council; these are the Administrative Regulations, Patent Regulations, Financial Regulations, Rules of the Procedure of the Organization's Administrative Council, and Statute of Fees.
Parts III and IV of the EAPC stipulate substantive and procedural norms of patent law. Their core ideas are as follows.
The Convention uses the declaratory principle of filing applications, according to which the patent is granted to the first applicant without verification of his/her entitlement with regard to the invention. According to Article 7 (2) of the EAPC, the applicant is deemed to be entitled to the Eurasian patent for the purposes of proceedings before the Eurasian Office.
The right to a Eurasian patent belongs to the inventor or his/her successor in title.
In order for the invention to be pronounced patentable, it needs to be new, involves an inventive step, and be industrially applicable.
The term of a Eurasian patent is 20 years from the filing date of the Eurasian application.
The extent of legal protection conferred by the Eurasian patent is determined by the claims. Descriptions and drawings only serve to interpret the claims.
The patent owner has the exclusive right to use, to authorize other to use, or to prohibit others from using the patented invention. He is entitled to act freely with regard to his right, i.e. to assign or license his right. After the publication of the Eurasian application the applicant enjoys provisional protection in conformity with the national legislation of the Contracting States .
Any disputes arising from the validity of a Eurasian patent or its infringement in a particular Contracting State are resolved by national courts or by other competent authorities of that state on the basis of the EAPC and the Patent Regulations (Article 13 (1) of the EAPC). The decision has effect only in the territory of the Contracting State where it was made, and not in all EAPC member states, i.e. that decision is not absolute. It follows from the above that the consideration of disputes such as the one mentioned above is done within the framework of procedural norms of the member states, while appropriate substantive norms of the Eurasian patent legislation are also applied, which indicates that the Eurasian patent is a document of highly universal character.
Article 14 of the EAPC contains an approximate list of details concerning substantive norms of the patent law that the Patent Regulations is to contain, including, for example, such points as the assignment and other transfer of the right to a Eurasian application or patent.
According to Article 15 of the EAPC, the Eurasian application may be filed with the Eurasian Office, or (for the applicants from the Contracting States) through the national patent office of the Contracting State, if such is permitted by the legislation of that state.
The procedure of obtaining a Eurasian patent consists of the following stages: formal examination, patent search, publication of the Eurasian application, and substantive examination.
The formal examination of a Eurasian application, including those received from national offices, is conducted within two months from the date it is received by EAPO, provided that documentation is received that confirms the payment of the fee.
The patent search for the Eurasian application is conducted according to the claims while the description is taken into consideration too and additional materials are used if required.
The Eurasian application is published by the EAPO after 18 months have expired since the filing date, or, if priority is claimed, since the priority date, or earlier at the applicant's request.
EAPO may perform substantive examination on the applicant's request if such is submitted to EAPO within six months from the date of the publication of the Eurasian application or, if the report on the patent search is published separately, then from the date of its publication, provided the fee has been paid.
If it is established that the invention is patentable, EAPO makes the decision to grant a Eurasian patent on the condition that the applicant agrees with the version of the Eurasian patent the EAPO intends to grant. If the patent examination finds that the proposal does not meet one or more of the patentability criteria, then a decision is made not to grant a patent.
If the applicant disagrees with the decision to refuse the granting of a patent, he/she may lodge an appeal with EAPO within three months from the date of receiving the notice of refusal. This appeal is considered within four months from the date it is received by EAPO by a board of three examiners, at least two of which did not participate in the taking of the decision on the subject matter of the said appeal. The ruling on the objection to EAPO decision, affirmed by the President, is final.
During four months from the date EAPO sends to the applicant a notification on its readiness to grant a Eurasian patent (or during three months from the date the applicant receives such notice) the fee for the grant of Eurasian patent and its publication is paid. Upon the receipt of this fee, EAPO directs the decision to grant the Eurasian patent to the applicant, registers the patent in the Register of Eurasian patents, publishes and grants the patent.
The date of granting the Eurasian patent is considered the date of publication of information on the grant of a Eurasian patent. The Eurasian patent is in force on the territory of all member states from the date of its publication (without payment of any additional fees) until the date of payment of the first yearly fee for the maintenance of Eurasian patent; this date corresponds to the date of filing the Eurasian application (singular character of the Eurasian patent). After payment of the first yearly fee and designation of each member state, where the owner of a Eurasian patent wishes to maintain it, the Eurasian patent remains valid in the territory of designated member states (all member states or some of them).
Thus, after the Eurasian patent owner designates in which member states he/she intends to maintain the patent, the common Eurasian patent moves, so to speak, into the "national domains", according to the number of designated member states.
Article 19 of the EAPC lists the approximate list of details that concern the Eurasian patent procedure that must be present in the Patent Regulations and, in particular, the conditions and procedure of administrative cancellation of Eurasian patents.
Part V of EAPC is concerned with important issues of the application of the Patent Cooperation Treaty. Article 20 of the EAPC, for example, confirms the principle of priority of PCT norms: "The patent Cooperation Treaty and its Regulations shall be applied in the Eurasian Patent System and, in the case of conflict between them and this Convention and its Regulations, the former shall prevail".
