Validation Agreements: Towards A Broader Territorial Coverage For European Patents?

"Thinking outside the confines of the continental map". In the beginning of 2015, Benoît Battistelli, President of the European Patent Office (EPO), unequivocally set the scene for the coming years. The priorities shall not be limited to finalizing the last details for the launch of the unitary patent in order to strengthen further the European patent system. Much remains to be done with respect to the global patent system, in terms of removing duplication of work, increasing work-sharing and harmonizing rules.

In this context, a new framework is emerging between the EPO and countries that are not members of the European Patent Organization. The EPO has established so-called "validation on request agreements" - short: validation agreements - that encourage any applicant for a European patent to extend the territorial coverage beyond the forty countries currently available under the EPC (38 Member States and two Extension States). These agreements do not imply any accession to the European Patent Convention (Article 166 (1)(a) and (b) EPC), and therefore are not confined to European states.

To date, five countries are concerned. Validation agreements already entered into force in Morocco (01.03.2015) and Moldova (01.11.2015). The coverage goes beyond the Eastern European neighbors and Mediterranean countries, as confirmed by the recent developments with Cambodia and Lao PDR. In May 2017, the EPO and Angola also agreed to initiate discussions. As two agreements with Cambodia and Tunisia will possibly enter into force soon and other agreements of this kind are likely to follow, it may be worth analyzing whether or not these agreements could offer applicants a cost-effective and strategic filing option and leverage their patenting behaviors and propensity to consider some, if not all of the territories as regular filing routes.

Strengthened national patent systems

One of the stated objectives of the validation agreements is to enhance the technical capacities of national patent offices and improve their ability to raise patent awareness among national innovators. Some of the countries that have already formalized the cooperation are facing rapid economic growth, as the real GDP growth rates in Cambodia and Lao PDR may exceed 7% over 2016-2020 (OECD, Economic Outlook for Southeast Asia, China and India 2017). Thus, the development of a robust IP legal framework is a top priority. Until 2015, the ASEAN member states sped up their integration into...