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On June 28, 2001, the Administrative Council of the European Patent Office (EPO) agreed to a revised wording of the European Patent Convention (EPC), and the requisite number of States has now ratified the new legislation to trigger implementation. The revised wording will thus come into effect no later than December 13th 2007. A summary of the key decisions is set out below.

EXCLUSION OF COMPUTER PROGRAMS TO REMAIN
A proposal to remove the exclusion in Article 52 EPC to computer programs as such was rejected with member countries deciding that it was preferable to wait for an EU Directive on the patenting of software. The proposed EU Directive has since failed because of a lack of consensus. Accordingly, the position in Europe remains that computer-implemented inventions can only be patented if they involve a new and inventive technical contribution to the state of the art. The debate over the meaning of "technical" in this context rages on. This exclusion should be borne in mind when drafting patent applications that are likely to be filed at the EPO.

DOCTRINE OF EQUIVALENTS FORMALLY INTRODUCED
The protection conferred by European patents will expressly include so-called "equivalents". This was achieved by amendment of the Protocol on the Interpretation of Article 69 (Extent of Protection) to include the following:
"For the purposes of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is an equivalent to an element in the claims."

PROPOSAL FOR FILE WRAPPER ESTOPPEL REJECTED
In conjunction with the inclusion of equivalents, it had been proposed to introduce some form of file wrapper estoppel, however this proposal was rejected. Accordingly, the status quo will be preserved with no file wrapper estoppel for European Patents.

POSSIBILITY OF FILING IN ANY LANGUAGE
Article 14 EPC has been amended to make it possible to file a patent application in any language. However, a translation into one of the official languages of the EPO will be required at a later date.

EXTENDED PROTECTION FOR FAILURE TO MEET TIME LIMITS
Article 121 relating to Further Processing has been amended to provide greater protection for applicants during the application procedure against legal consequences arising from non-observance of time limits.

CENTRALISED POST-GRANT AMENDMENT PROCEDURE
A further important feature of the revision will give patent proprietors the option, in a central procedure before the EPO, of amending their patents post-grant. The option here is to limit the protection afforded by their European patents. This will overcome the problems currently experienced with the requirement for separate amendment in individual States where a European Patent is in force.

COMBINED SEARCH AND EXAMINATION
Traditionally at the EPO, searching was performed by the EPO in the Hague and examination by the EPO in Munich. Now that the EPO's vast collection of search documentation is accessible in both locations, there is no longer any need to separate the two tasks. Accordingly, appropriate changes have been made to the EPC to facilitate this. It is believed that this move will lead to a significant increase in the productivity and efficiency of the EPO.

CENTRAL EUROPEAN COURT FOR EUROPEAN PATENTS
Provision is being made for the possible later introduction of a central court system for deciding on the enforcement and validity of European patents. Work to establish the Court is ongoing.

PROFESSIONAL PRIVILEGE
An amendment has been made to the EPC, to expressly provide for an attorney-client privilege for European Patent Attorneys in relation to their work at the EPO, comparable to in the provision of the Irish and UK Patents Acts attorney-client privilege.

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