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Applying for a patent

Patentability
What are the criteria for patentability in your jurisdiction?

In order to be patentable an invention must be new, involve an inventive step and be capable of industrial application.

What are the limits on patentability?

The following are not regarded as inventions and are thus unpatentable:

  • discoveries, scientific theories or mathematical methods;
  • aesthetic creations;
  • schemes, rules or methods for performing mental acts, playing games or carrying out economic activities;
  • computer programs; and
  • presentations of information.

Patents cannot be granted in respect of inventions whose exploitation is contrary to public order or morality.

To what extent can inventions covering software be patented?

Computer programs as such are not patentable, but may be protected as literary works under the Copyright Law (59/1976), as amended. Protection is obtained automatically by creation; no registration is required or provided for.

To what extent can inventions covering business methods be patented?

Schemes, rules and methods for performing mental acts, playing games or doing business are not deemed inventions and therefore cannot be patented.

To what extent can inventions relating to stem cells be patented?

The following are unpatentable:

  • processes for cloning humans;
  • processes for modifying the germ line genetic identity of humans;
  • uses of human embryos for industrial or commercial purposes; and
  • processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to humans or animals, and animals resulting from such processes.

Are there restrictions on any other kinds of invention?

Inventions whose publication or exploitation would be contrary to public order or morality are not patentable. However, the exploitation of an invention will not be deemed contrary to public order or morality merely because it is prohibited by law or regulation.  

Inventions which concern plants or animals are not patentable if the technical feasibility of the invention is connected to a particular plant or animal variety, or if the invention is essentially a biological process for the production of plants or animals. This restriction is without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained through these processes.

According to the EU Biotechnology Directive 1998, plant and animal varieties, as well as essentially biological processes for the production of plants or animals, may not be patented. However, inventions which concern plants or animals may be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety.

‘Plant variety’ is defined in the same way as in Rule 23(b)(4) of the European Patent Convention:

“any plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:

  • defined by the expression of the characteristics that results from a given genotype or combination of genotypes;
  • distinguished from any plant grouping by the expression of at least one of the said characteristics;
  • considered as a unit with regard to its suitability for being propagated unchanged.”

Grace period
Does your jurisdiction have a grace period? If so, how does it work?

No protection is provided against publication of an invention before filing. 

Oppositions
What types of patent opposition procedure are available in your jurisdiction?

The law does not provide procedures for opposing the grant of a patent.  

Apart from oppositions, are there any other ways to challenge a patent outside the courts?

No.

How can patent office decisions be appealed in your jurisdiction?

Registrar decisions can be appealed before the Supreme Court.

Timescale and costs
How long should an applicant expect to wait before being granted a patent and what level of cost should it budget for?

An applicant should expect to wait around one year before being granted a patent. The official costs are around €1,800, including the cost of the European Patent Office’s search and examination report. Legal costs will vary according to the amount of time needed and the complexity of the matter, but they are relatively low compared with most European countries.

Enforcement through the courts

Strategy
What are the most effective ways for a patent owner to enforce its rights in your jurisdiction?

Any infringement action may be brought before the competent court, which can award damages, injunctions and any other remedies provided by law. If no infringement has taken place but it is proven that it is likely to occur, an injunction can be obtained. In infringement proceedings, defendants may request the invalidation of a patent. If an infringement action relates to a European patent and no opposition has been filed, the court can suspend the proceedings until the period for filing an opposition has expired. If an opposition has been filed, the court can suspend proceedings until a final decision on the opposition has been made.

Unless the licence agreement provides otherwise, a licensee may require the rights holder to initiate infringement proceedings indicated by the licensee. After notifying the rights holder in this way, the licensee may initiate infringement proceedings in its name, as long as it can prove that the rights holder received the request but refused or failed to initiate proceedings within three months of receipt. In these cases, the rights holder can join the proceedings brought by the licensee. On application by the licensee, the court may grant an injunction to prevent infringement or further infringement before the three-month period has expired, as long as the licensee can prove that immediate action is required to avoid substantial damage.

Infringement actions are barred by statute six years after the infringement was committed.

Once a patent application has been published (which takes place as soon as possible after 18 months have passed since the filing or priority date or earlier, if so requested by the applicant in writing), the applicant will hold provisional rights and may initiate infringement proceedings against any infringers. However, the courts may suspend proceedings concerning unauthorised acts that relate to an invention which is the subject of a published application until the registrar reaches a final decision on the application (ie, grant or refusal).

A published European patent application designating Cyprus will have effect only if a Greek translation of the claims has been filed with the Cyprus Patent Office in the prescribed manner (accompanied by the required fee) or has been notified to the alleged infringer. The extent of protection conferred by a published application will be determined by the latest filed claims in the published application, provided that the patent as granted retroactively determines the extent of protection of the application (insofar as the protection is not extended by it). If a patent is amended in revocation proceedings, the extent of protection conferred by the published application will retroactively be determined by the patent as amended (insofar as the protection is not extended by the amendment).

Depending on ratification of the Agreement on a Unified Patent Court, a European patent granted after its entry into force may, at the applicant's behest, alternatively be registered as a European patent with unitary effect for the whole of the European Union, except (as expected) Italy, Spain and Poland. The Unified Patent Court will have jurisdiction concerning the infringement and validity of EU patents, as well as European patents registered in member states that ratify or adopt the agreement (which is expected to include Italy). During a transitional period of at least seven years, patentees will have the option to file an opt-out notice which will prevent nationally registered European patents from falling under the jurisdiction of the Unified Patent Court; instead, they will fall under the jurisdiction of the respective national courts.

What scope is there for forum selection?

No scope for forum selection exists.

Pre-trial
What are the stages in the litigation process leading up to a full trial?

Civil proceedings start with the filing of an originating process in the form of a writ of summons. If the writ of summons does not detail the claim, a statement of claim must be filed within a specified time. A party may file the following:

  • a notice to produce documents during trial;
  • an order for discovery on oath or inspection of documents relating to any matter in question which are in the other party’s possession or control;
  • a noticing in writing inviting another party to admit the truth of some or all of the facts and documents;
  • an application for further and better particulars of any matter stated in the pleadings;
  • an application for security for costs in the event that the plaintiff is ordinarily resident outside the European Union; and
  • an application for interlocutory relief if there are issues of particular urgency, supported by affidavits from relevant witnesses.

How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?

Defendants may delay proceedings by various procedural means, including seeking orders to amend their pleadings or postpone the case due to the unavailability of material witnesses. Within one month of the pleadings closure, plaintiffs may apply to the court to set a trial date.

How might a party challenge the validity of a patent through the courts in anticipation of a potential suit for infringement being issued against it?

Anyone may apply to the Supreme Court for invalidation of a patent. An application for invalidation may be based on the following grounds:

  • the subject matter of the patent is not novel or is not patentable for another reason;
  • there is insufficient disclosure of the invention (ie, the invention is not disclosed in the patent in a sufficiently clear and complete manner, so as to allow it to be carried out by a person skilled in the state of the art); or
  • the person to whom the patent was granted is not entitled to it.

During invalidation proceedings, the court may require the owner of the patent to file publications and other documents which show the prior art referred to in:

  • the application for the patent or other title of protection filed by the rights holder with any other national or regional industrial property office for the same or essentially the same invention; or
  • any proceedings relating to the patent or other title of protection granted on such application.

Partial invalidation of one or some of the claims, or a part or parts of a claim or claims, is possible. Invalidation is effective retroactively from the date the patent was granted.

At trial
What level of expertise can a patent owner expect from the courts?

Cyprus courts have no more than average expertise on patent issues due to the limited number of patent cases filed. Therefore,  rights holders should produce evidence at trial with expert witnesses.

Are cases decided by one judge, a panel of judges or a jury?

First-instance patent cases are tried by one Supreme Court judge.

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

N/A.

What role can and do expert witnesses play in proceedings?

Expert witnesses may assist the courts in matters which require specific knowledge and expertise.

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

Under the Patents Law, a patentee may raise an infringement claim regarding an accused product or process which is the subject matter of the patent.

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

If the owner of the patent proves that infringement has been committed or is being committed, the court may award damages, grant a prohibitory injunction prohibiting further infringement and award any other remedies provided by law.

The court that decides that infringement has occurred can order the infringer not to repeat the violation. Failure to comply is punishable by a fine of up to €59,850, imprisonment for up to three years or both.

If a rights holder proves that infringement is likely to occur, the court may grant a temporary injunction prohibiting the infringement and award any other remedy provided for by law.

How are issues around infringement and validity treated in your jurisdiction?

In infringement proceedings, the defendant may request the invalidation of the patent. Where an action is based on infringement of a European patent, the court may suspend the proceedings until the period for filing an opposition has expired where no opposition has been filed or, if an opposition has been filed, until a final decision on the opposition has been made.

Will courts consider decisions in cases involving similar issues from other jurisdictions?

The Cyprus courts may consider decisions from the European Court of Justice involving similar issues.

Damages and remedies
Can the successful party obtain costs from the losing party?

Yes – the successful party may obtain an order for the legal costs adjudged in its favour, according to the scale of legal costs approved by the Cyprus Supreme Court.

What are the typical remedies granted to a successful plaintiff?

The court may award damages, grant an injunction to prevent further infringement or grant any other remedy which it deems appropriate (eg, an order to destroy the infringing material). 

How are damages awards calculated? Are punitive damages available?

Awards are calculated based on the evidence submitted to the court. Although the courts can award punitive damages, they rarely do so.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

The courts may grant a permanent injunction to a successful plaintiff where the damage sustained is irreparable and a damages award would not provide effective redress. 

Timescale and costs
How long does it take to obtain a decision at first instance and is it possible to expedite this process?

First-instance decisions can take two or three years; however, a determined defendant can delay proceedings beyond this timeframe. The Civil Procedure Rules provide no option for expedited trials. An aggrieved party may seek injunctive relief pending the trial in order to safeguard against irreparable damage.

How much should a litigant plan to pay to take a case through to a first-instance decision?

Costs vary depending on the amounts involved and the complexity of the case. Therefore, it is difficult to predict costs in any meaningful way. By international standards, legal costs in Cyprus are modest.

Appeal
Under what circumstances will the losing party in a first-instance case be granted the right to appeal? How long does an appeal typically take?

A losing party may appeal a first-instance decision where the appeal concerns a misconception of the law or both the facts of the case and the law. Appeal are usually initiated a year after a judgment has been issued. They typically take three to six months to be heard by the Supreme Court, depending on the complexity of the issues of the case.

Options away from court
Are there other dispute resolution options open to parties that believe their patents to be infringed outside the courts?

Arbitration is an option only in cases where there is an agreement between the parties containing an arbitration clause.