Eurasian Patent Convention
The Eurasian Patent Convention (EAPC) is an international treaty instituting both the Eurasian Patent Organization (EAPO) and the legal system pursuant to which Eurasian patents are granted. All contracting states maintain their sovereignty to develop their national systems on patents.[1]
Contents
History
The EAPC was signed on 9 September 1995, but the idea of establishing a regional patent organization for these states wasn't always the same.
During the dissolution of the Soviet Union and in response to the forthcoming political changes, the successor states aimed to establish an "interstate system"; an interstate organization issuing a single, unitary patent for all contracting states. On 27 December 1991 a provisional agreement was signed, providing for the establishment of an Interstate Organization and an Interstate Patent Office. However, because the legal foundations for patents and related fields were lacking at the time in all states, the agreement was deemed overly ambitious. Ultimately, the agreement was abandoned in favor of an "open patent convention", similar to the EPC.[2]
Overview
The following is a list of key features that one must keep in mind while studying patents under the EAPC.
- The substantive regulations on issuing patents are provisioned by a separate document, the Patent Regulations under the EAPC.[3]
- The language used throughout the EAPO is Russian.[4]
- Eurasian patents have immediate effect on the territory of all contracting states from the date of publication.[5]
- The term of Eurasian patents is 20 years.[6]
- Disputes arising from the validity or the infringement of Eurasian patents in a contracting state are resolved by the national courts of that state. The decision only has effect in the territory of that state.[7]
- Issued patents may be revoked by the EAPO on the basis of a notice of opposition filed by any person within 6 months from the date of publication of the information on the grant of the Eurasian patent.[8]
- Issued patents may be invalidated by a contracting state's court of law at any time.[9][note 1]
Software patents
The Patent Regulations under the EAPC have a section on patentable subject-matter, which also mentions computer programs. According to Rule 3(3):
(1) In accordance with Article 6 of the Convention, a Eurasian patent shall be granted for any invention that is novel, involves an inventive step and is industrially applicable. [...]
(3) The following shall not, as such, be recognized as inventions as implied in Rule 3(1) of the Regulations, inter alia:
- discoveries;
- scientific theories and mathematical methods;
- presentation of information;
- methods of economy organization and management;
- symbols, schedules and rules, including rules of games;
- methods for performing mental acts;
- algorithms and computer programs;
- projects and plans for structures and buildings and for land development;
- solutions concerning solely the outward appearance of manufactured goods and aimed at satisfying aesthetic requirements.
The above-listed subject matter shall not be recognized as inventions in those cases where a Eurasian application or a Eurasian patent are directly pertinent to any of the above-listed subject matter as such;
The use of as such allows the EAPO to grant software patents by interpreting it as nullifying the exclusion.
Acts not infringing
If our goal is to shield software from litigation, Rule 19 of the Regulations would have to be amended:
The following cases of the use of the patented invention shall not constitute an infringement of the Eurasian patent:
- use in the construction or operation of means of transportation of a member State of the Paris Union for the Protection of Industrial Property that is not a Contracting State, when such means of transportation temporarily or accidentally enter the territory of the Contracting State, provided that the invention is used exclusively for the needs of said means of transportation;
- use for scientific research and experimental purposes;
- use for the occasional preparation, in a pharmacy, of a medicine on a medical prescription;
- use for private non-profit-making purposes;
- use of a product after this product has been marketed by the patent owner himself or with his consent in a Contracting State where the Eurasian patent is valid and in which the product in question was marketed.
Contracting states
| State | Date of signature | Date of accession | Date of denunciation |
|---|---|---|---|
| Armenia | 9 September 1994 | 27 November 1995 | - |
| Azerbaijan | 9 September 1994 | 25 September 1995 | - |
| Belarus | 9 September 1994 | 8 May 1995 | - |
| Georgia | 9 September 1994 | - | - |
| Kazakhstan | 9 September 1994 | 4 August 1995 | - |
| Kyrgyzstan | 9 September 1994 | 13 October 1995 | - |
| Moldova | 9 September 1994 | 16 November 1995 | 26 March 2012 |
| Russia | 9 September 1994 | 27 June 1995 | - |
| Tajikistan | 9 September 1994 | 12 May 1995 | - |
| Turkmenistan | - | 1 March 1995 | - |
| Ukraine | 9 September 1994 | - | - |
Notes
- ↑ In particular:
(1) Subject to the provisions of Article 13 of the Convention and Rule 52 of the Regulations, the Eurasian patent may be invalidated, either entirely or in part, at any time during its period of validity, on the territory of a Contracting State by virtue of its national procedural rules in the following cases:
- a) the grant of the Eurasian patent had no legal basis owing to the disconformities of the protected invention with the patentability criteria set by the Convention and the Regulations;
