Patent Law

The objective of patent law is to protect technical creations, such as watch movements. The patent confers on its owner the exclusive rights, for a predetermined period, to a product or a process constituting a new technical achievement. In return for this monopoly, the inventor informs the public about a new product or process.

The basic conditions required for an invention to enjoy the protection of a patent are the following:

  • The invention must be new. Its novelty is evaluated by comparing the invention to the technical situation at the time of the request for the patent. The technical situation is defined by the technical information available to the public. In other words, information would be considered as obviating a ‘novelty’, if it was already available to the public at the time the patent application was made.
  • The invention must be the result of an act of invention, meaning that it cannot originate from the current technical situation, in a way that would be obvious to someone in the trade concerned. Therefore, creations that are able to be derived by deduction or combinations of technical elements requiring no creative effort are not eligible for protection.

By the same token, patent protection does not cover discoveries, ideas, principles, scientific theories and mathematical methods which have no means of concrete application. Aesthetic creations are also excluded from patent protection, but can benefit from the protection of the designs and models rights, if they fulfil the requirements of the law.

Patents are granted at the end of a registration procedure, initiated by the submission of an application, which has to include a description of the patent and the claims enabling it to define the extent of the patent protection.

At the end of the patent application procedure, the patent provides the owner with a temporary exploitation monopoly. The owner has the right to forbid third parties to use his invention. He also has the right to organize its exploitation and to grant licences to third parties, according to the conditions established within the framework of a contract. Sanctions against the counterfeiting of patents are subject to the competence of countries' national legislations.

Patents constitute an exception to free competition over a given period. Access to invention is denied to players in the market other than the owner.

The length of patents' protection cover varies from country to country. In many, it is twenty years. A patent can be applied for at, and granted by, the competent national office of one's own country. The protection obtained is therefore restricted territorially to the country concerned.

It is also possible to request an international patent, governed by the Treaty of Cooperation on Patent Matters, according to the Convention of Washington of 19th June 1970, establishing a system of international patent application called: the PCT (Patent Cooperation Treaty). It is currently applied by 128 contracting parties. One single international application is lodged at a receiving office in Geneva, within the World Organization for Intellectual Property (WOIP). While the application procedure is covered by this convention, the decision to grant a patent and the system controlling issued patents come under the national laws of the country specified in the application.

The European Patents Office (EPO) can also issue patent protection. Given the many differences between national legislations, the European countries have demonstrated their common political desire to establish a unified patenting system in Europe. The original idea was to create a community patent, but it quickly became obvious that this approach was not going to be acceptable. The 1973 Munich Convention was thus adopted, establishing a centralized application and issuing procedure for all the Member States of this convention. The European patent confers upon its owner, from the day of the publication of confirmation of issue and in each of the member countries requested in the application, the same rights as he would have with a patent issued in his own country. One single patent application can cover the thirty or so members of the EPO. The issuing of the patent is published in the European patent bulletin. Once issued, this patent activates a national patent for each of the countries requested in the application.

As for the Community patent, several attempts to set one up have failed (notably the Luxembourg Convention in 1975). Nevertheless, many European Union members have emphasized the importance of establishing such an instrument.

Stumbling blocks hindering agreement between the various countries include the cost of patent translations, a complex jurisdictional system...