2010 has been an breakthrough year for Taiwan and European patents, as many corporations have begun looking beyond the US and China. But although Taiwanese companies have made lots of progress, the majority are still not familiar with the unique properties and procedures of this patent system. As a result, we have collected some of the most asked-about topics on EU Patents for 2010.

A First-to-File System
From a legal point of view, most Asian companies are very familiar with the US patent system. Usually, people apply for patents for their own country and the U.S., not only because of the long history of the patent system in the U.S., but also because of the huge market of the world's largest economy. Unfortunately for Asian companies, the basic spirits of the US and European patent systems are fundamentally different: The US is a "First to invent" system, whereas the EU is a "first to file" system. The USPTO accepts nearly any form of disclosure, and the grace period from disclosure to filing is 12 months. The European Patent Office (EPO) on the other hand, only exempts disclosures due to evident abuse, provided that such disclosures were made within a 6 months grace period, and only for inventions disclosed in an exhibition registered and recognized by the International Exhibitions Bureau. Therefore an inventor must be very careful not to disclose his invention before filing a European patent.

Costs
The most often asked question was about the cost difference for patent applications in these two regions. Generally speaking, if no extra costs from excess claims or other surcharges exist, a US patent costs around USD 3,080 for a large entity and USD 1,780 for a small entity. A European patent costs around EUR 5,075, if granted between 3~4 years from filing, which is the average time in 2009. So a European patent appears to be much more expensive. However, when it comes to litigation, US patents require more time and cost. Consequently the target market of the product, the base costs and the efficiency of the patent market are also factors which must be considered when filing a patent.

Contribution over Prior Art & Problem Solution Approach
In the US, the invention must be novel and non-obvious. Requirements are similar in patent offices all over the world, including the EPO. However, the EPO requires that an invention be granted a patent only if it makes a contribution over the prior art. Furthermore, a "problem-solution approach" is needed. That is, in the description, the applicant must describe the technical problem and the advantageous effects of the invention. This is not always necessary in a US application.

Two-Part Claims
For claim drafting, the EPO rules are much more defined that those of the USPTO. For a European patent, the independent claims must be written in two-part form. By doing this, the first part of the claim (the preamble in US patent) will precisely define the prior art features. The second part consists of the inventive features of the invention.

Means Plus Function Language
Another suggestion for European patent claim drafting is to use "means plus function" language. Unlike a US patent, which requires the applicant to provide sufficient embodiments to support the means plus function claim, the EPO accepts a rougher disclosure and provides a wider scope of protection for a means plus function claim.

Claim Categories
For claim categories, "apparatus/ device/ module" is the most important category because it is the claim that offers the most enforcement options. For example, a "method" claim can only be infringed by someone who carries out the method. The manufacturer would not be liable for patent infringement (only contributory infringement). A "system" claim requires multiple actors and is very difficult to enforce, so it is better to seek protection for a one-actor claim (something that can be infringed by just one actor).

Unity of Invention
"Unity of invention" rules are clearly defined in the European patent system. Unlike the USPTO, which accepts a number of independent claims in the same category, the EPO only allows one independent claim for each category, unless the subject matters are: (a) a plurality of interrelated products, such as plugs and sockets; (b) different uses of a product or apparatus, for example if medicine can be used to treat several different diseases; and (c) alternative solutions to a particular problem, such as different technologies that implement naked-eye 3D display in large size monitors. Please note that the shared feature of the claims must be "inventive" according to the European patent law. That's why the example of the naked-eye 3D display must be limited to large size monitors. The technology of naked-eye 3D display has previously been realized in small size monitors, and without this qualifier, the shared feature will not be "inventive over the prior art" and the claims will be objected.

Multiple Dependent Claims
The USPTO and EPO have with completely contrasting policies with regards to "multiple dependent claims". The USPTO does not allow multiple dependent claims that refer back to a prior multiple dependent claim. Also, a multiple dependent claim will be counted as the number of the claims it refers back. So if you write a claim that refers back to 5 prior claims, this claim will be counted as "5 claims". The EPO, on the other hand, welcomes a "multiple to multiple" claim structure. And, no matter how many claims it refers back, a multiple dependent claim will always be counted as one claim. Because of these differences, using multiple dependent claims in a European patent reduces the number of claims and claim costs at the same time.

Infringement/Warning Letters
In the event you receive an infringement/warning letter, the first step is to seek immediate counsel from an experienced lawyer or patent attorney. Usually the attorney will go over the following steps with you: (1) Is the asserted patent valid? (2) If the provided the patent is valid, is there infringement, either literal or by equivalence? (3) If there is infringement, is the patent exhausted? By following these three steps, you can receive a much clearer picture of your situation.

Competing Patents
Before developing commercial activities in a specific country, it is advisable to monitor competitors' patents by use of monitoring services implemented and reported by patent attorneys. If conflicting patents are detected, you can attempt to oppose or invalidate the patents. Or, if no chance to attack exists, consider circumventing the protective right by devising a non-infringing embodiment or an alternative solution. If neither options are viable, a final, but not advisable strategy is to willfully infringe the patent and risk being sued. In this case, the end result may only be that you pay royalties for the infringement—which may not exceed the cost of an upfront license!
The best way to prevent infringement litigation, however, is to build your own patent portfolio. By filing patent applications on your developed IP you may:

- monitor your competitors' applications and activities
- obtain your own patents to block competition, and
- escape infringement of competitors' patents with only a modification.

The "European Patent" Myth
One last important reminder is that a European patent is not a community patent. Obtaining a European Patent does not provide you with a patent in all countries of the European Union. To obtain this protection, the applicant must designate the Contracting States. Furthermore, no single court exists for the entire EU. All litigations and enforcement must be dealt with by the national courts of the designated countries. Also renewal/maintenance fees in each country are different.