Lisbon Treaty

Treaty of Lisbon

The Treaty of Lisbon entered into force on 1 December 2009^[1] in accordance with its Article 6^[2] and was ratified by each of the European Union’s (EU) 27 members.

European leaders embarked on a process to make the EU more democratic, more transparent and more efficient^[3]. The Treaty of Lisbon supports democracy in the EU and its ability to promote the interests of its citizens on a day-to-day basis^[4]. It defines what the EU can/cannot do and what resources it can use^[5]. It modifies the structure of the EU’s institutions and how they operate. As a result, the EU is more democratic and its core values are better served^[6]. It was envisioned to reform the functioning of the EU following the two waves of expansion which have taken place since 2004 and which has increased the number of EU Member States from 15 to 27^[7].

Also, it was drafted as a substitute for the Constitutional Treaty which was rejected by French and Dutch voters in 2005^[8].

The Lisbon Treaty is effectively divided into two parts: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)^[9].

The TEU sets out the broad provisions governing the EU and also regulates the EU’s external relations. Noteworthy Articles include:

Article 18 – High Representative of the Union for Foreign Affairs and Security Policy^[10].

Article 21 – External actions (including development cooperation)^[11].

Article 27 – European External Action Service^[12].

The TFEU sets out the explicit objectives of the EU’s numerous policies^[13]. The specific procedures governing the EU’s external actions, including development cooperation, are set out in Part Five of this treaty^[14].

Part Five Title 3 of the TFEU covers cooperation with third party countries and humanitarian aid^[15]. Chapter 1 of Title 3 includes the Articles on the EU’s development cooperation policy^[16].

It contains many of the changes the European constitution attempted to introduce, for example:

A politician chosen to be president of the European Council for two-and-a-half years^[17].

A new post called High Representative which combines the jobs of the existing foreign affairs chief and the external affairs commissioner to give the EU more impact on the world stage^[18].

The European Commission continues to have 27 commissioners – one from each member state^[19].

Qualified Majority Voting – A redistribution of voting weights between the Member States, phased in between 2014 and 2017 based on a double majority of 55% of Member States, accounting for 65% of the EU’s population^[20].

Increased powers for the European Commission, European Parliament and European Court of Justice, for example in the field of justice and home affairs^[21].

The parliament will be equal to the Council for most legislation, including the budget and agriculture^[22].

Deletion of national vetoes in a number of areas, including fighting climate change, energy security and emergency aid^[23].

2. European Patent Convention 2000

The European Patent Convention 2000 (EPC) entered into force on 13 December 2007 and did not introduce any major changes in substantive patent law, except changes concerning novelty, industrial applicabilityand priority rights^[24]. Nicholas Fox states ‘the fact that patent proprietors resorted to opposing their own applications revealed the desirability of some form of centralised post-grant amendment system’^[25].

To consider change, a political conference was held in November 2000 in Munich to review the EPC of 5 October 1973, amongst other things to integrate new advances in international law, especially those of ‘TRIPs agreements’, the law on patents and to increase the level of judicial review of the boards for appeal decisions^[26].

Some of the key changes surround the patent law are:

Claiming priority

If the twelve month deadline for claiming priority is missed, an applicant may still be able to file a subsequent application claiming priority from his earlier application^[27]. The application must be filed within fourteen months of the filing date of the earlier application and the applicant must provide reasoning that convinces the European Patent Office (EPO) that it was intended to file the application by the original deadline and that this was missed in spite of taking all due care^[28]. Additionally, if an application is filed in time to gain from a claim to priority, but a declaration of priority is not incorporated in the application, the applicant may add the declaration of priority at any time before sixteen months from the priority date^[29].

Patentable subject matter

An amendment has been made to bring the EPC into line with the TRIPs Agreement to specify that a patent may be approved in all technological fields^[30]. Methods of treatment of the human or animal body by surgery or therapy are explicitly defined in the EPC as unpatentable subject matter^[31].

Filing requirements

EPC allows European patent applications to be filed in any language, including non-European languages^[32].

Post-grant amendment

A patentee can limit or rescind a patent’s claim as long as there is no opposition^[33].

Missed deadlines

EPC has broadened the possibilities for further processing, indicating that this option may be used when there has been a failure to observe virtually any time limit^[34]. For a few time limits further processing is specifically excluded, such as the time limit for filing applications claiming priority and for filing an appeal^[35].

Board of Appeal Decisions

The EPC give parties the opportunity to file a petition to have a decision reviewed by the Enlarged Board of Appeal^[36].

Bibliography

The Lisbon Treaty

Legislation

– Treaty on European Union

– Treaty on the Functioning of the European Union

Websites

– BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

– Europa Official Site < http://ec.europa.eu/archives/lisbon_treaty/index_en.htm > Last Visited: 09/02/2016

– Lisbon Treaty Official Website < http://www.lisbon-treaty.org/wcm/the-lisbon-treaty.html > Last Visited: 09/02/016.

European Patent Convention 2000

Legislation

– European Patent Convention 2000

Websites

– European Patent Office (EPO) web site <https://www.epo.org/law-practice/legal-texts/epc.html> Last Visited: 10/02/2016.

– Nicholas Fox, ‘A Guide to the EPC 2000 – A Practitioners Guide to the Law’ < http://epc2000guide.com/past.htm> Last Visited: 10/02/2016

– Rachel Wallace, ‘European Patent Convention (EPC) 2000’ Withers & Rogers LLP Website <http://www.wptn.com/wptn-in/Mailing/Feb_2007_4/details/patents/epc.html> Last Visited: 09/02/2016

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^[1] Europa Official Site < http://ec.europa.eu/archives/lisbon_treaty/index_en.htm > Last Visited: 09/02/2016

^[2] Treaty on European Union Article 6

^[3] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[4] Europa Official Site < http://ec.europa.eu/archives/lisbon_treaty/index_en.htm > Last Visited: 09/02/2016

^[5] Europa Official Site < http://ec.europa.eu/archives/lisbon_treaty/index_en.htm > Last Visited: 09/02/2016

^[6] Europa Official Site < http://ec.europa.eu/archives/lisbon_treaty/index_en.htm > Last Visited: 09/02/2016

^[7] Lisbon Treaty Official Website < http://www.lisbon-treaty.org/wcm/the-lisbon-treaty.html > Last Visited: 09/02/016.

^[8] Lisbon Treaty Official Website < http://www.lisbon-treaty.org/wcm/the-lisbon-treaty.html > Last Visited: 09/02/016.

^[9] Lisbon Treaty Official Website < http://www.lisbon-treaty.org/wcm/the-lisbon-treaty.html > Last Visited: 09/02/016.

^[10] Treaty on European Union Article 18

^[11] Treaty on European Union Article 21.

^[12] Treaty on European Union Article 27.

^[13] Lisbon Treaty Official Website < http://www.lisbon-treaty.org/wcm/the-lisbon-treaty.html > Last Visited: 09/02/016.

^[14] Treaty on the Functioning of the European Union Part 5

^[15] Treaty on the Functioning of the European Union Part 5 Title 3.

^[16] Treaty on the Functioning of the European Union Part 5 Title 3 Chapter 1.

^[17] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[18] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[19] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[20] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[21] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[22] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[23] BBC News Official Website, ‘Q&A: The Lisbon Treaty’ <http://news.bbc.co.uk/1/hi/world/europe/6901353.stm> Last Visited: 09/02/016.

^[24] European Patent Office (EPO) web site <https://www.epo.org/law-practice/legal-texts/epc.html> Last Visited: 10/02/2016.

^[25] Nichola Fox, ‘A Guide to the EPC 2000 – A Practitioners Guide to the Law’ < http://epc2000guide.com/past.htm> Last Visited: 10/02/2016

^[26] Rachel Wallace, ‘European Patent Convention (EPC) 2000’ Withers & Rogers LLP Website <http://www.wptn.com/wptn-in/Mailing/Feb_2007_4/details/patents/epc.html> Last Visited: 09/02/2016

^[27] European Patent Convention 2000 Article 87

^[28] European Patent Convention 2000 Article 87

^[29] European Patent Convention 2000 Article 87

^[30] European Patent Convention 2000 Article 52

^[31] Rachel Wallace, ‘European Patent Convention (EPC) 2000’ Withers & Rogers LLP Website <http://www.wptn.com/wptn-in/Mailing/Feb_2007_4/details/patents/epc.html> Last Visited: 09/02/2016

^[32] European Patent Convention 2000 Rule 2.

^[33] European Patent Convention 2000 Article 123

^[34] European Patent Convention 2000 Article 121

^[35] European Patent Convention 2000 Article 121

^[36] European Patent Convention 2000 Article 112