1 Report on WIPO Client Privilege Meeting Kenji Asai October 19, 2008 APAA Patents Committee.
The Consolidate Patents Act - WIPO
Transcript of The Consolidate Patents Act - WIPO
The Mi nistryfor Business and Industry Consolidate A CT Nu. 781 of 30 August 2001
The Consolidate Patents Act
Publication of th e Patents Ac t, cf. Co nso lida ted Ac t No . 926 of 22 September 20(JO, inc lud ing th e
ame ndme nts wh ich foll ow from Sec tion I in Ac t No . 125R 01'20 December 2000 "
Part I
General provisions
Section I
(1) Any per son wh o has made an inventionwhich is susceptible of industri al app lication, orhis successor in title, shall, in accordance withthis Act, hav e the right on app lication to begranted a patent for the invention and therebyobtain an exclusive right to exploit the inventi oncommerciall y. Inventions may be patented within all areas of technology.
(2) Th e following subject-matter or activi tiesin particular shall as such not be regarded as inventions :(i) discover ies, scientific theories and mathe
matical meth ods,(ii) art istic creations,(iii) plans, rule s or methods for intellectual activ
ity, for games or for busine ss activity orcomputer programs,
(iv) presentation of information.(3) Methods for surg ical or therapeuti c treat
ment or for diagnosis, practi sed on human beingsor animals, sha ll not be regarded as inve ntions,either. Th is pro vision sha ll not prevent the grantof patents for products, including substances andcompounds, for use in any of such method s.
(4) Patent s shall not be granted in respect ofplant and anim al varieties . Patents may, however, be granted for inventi ons, the subject matterof which is plant s or anima ls if the techni cal fea-
The Ministr y of Trade and Industry.Dan ish Patent and Trademark Of1ice . j .No , 199R 002 35
s.ibility of the in v~nti on is not co nfined to a pa rticul ar plant or an imal variety. In th is act , a plantvariety means a plant variety as defin ed in Artic le 5 of Co uncil Regul ation (EC) No. 2 100/94 onCo mmunity plant variety rights.
(5) Patents sha ll not be gra nted in res pect ofessentially biological processes for the produ cti?n of plan ts or animals. In thi s Act. essentia llybiolog ical processes mean processes, wh ich consist entire ly of natural phenom ena such as crossing or se lection. Patent s may, how ever , be gra nted lor microb iological processes or other techn ica l processes or a product produced by means ofsuch processes. In thi s Act. a microbiologica lpro cess means any process, which exploits amicrobi ological materia l. is perform ed on amicrobi ological mater ial or results in a microbiologica l material.
(6) Inventi ons may be paten tab le, eve n if theyco nce rn a produ ct consisting of or containing bio log ica l rnaterial or a process by means of whichbiological mat erial is produced, processed orused . Biolog ical mat erial , which is isolated fromits natu ral env ironment or produ ced by means ofa techni cal process may be the subject of an invention eve n if it previously occ urred in nature .In thi s Ac t, biolo gical material means materialconta ining genetic info rma tion and capable ofrepro duc ing itse lf or being reproduced in a biological system.
Sec tion la
(I) The human body, at the various stages or
Schult l G,ar"k
its forma tion and development, and the simplediscovery of one of its elements, including a sequence or part ial sequence of a gene, cannot con-stitute patentab le inventions. .
(2) No twithstanding subsect ion I hereof, anelement isolated from the human body or otherwise produ ced by means of a techn ical process,including a sequence or partial sequence of agene, may consti tute a patentable invention,even if the struc ture of that element is identicalto that of a natural element.
Section Ib
(I) Patents shall not be granted in respect of inventions the commercia l exploitation of whichwould be contrary to ordre publ ic or morality.
(2) An exploitation shall not be deemed to becontrary to ordre publ ic or morality merely because the exploitation is prohibited by law or administrat ive regulation.
(3) Pursuant to (I) patents may, however, notbe granted for, among other things(i) processes for cloning human beings,(i i) processes for modi fying the germ line genet
ic identity of human beings,(iii) uses of human embryos for industrial or
commerc ial purposes, and(iv) processes for modi fying the genetic identit yofanima ls which are likely to cause them suffering witho ut any substantial medical benefit toman or animal, and also animals resulting fromsuch processes.
Sec tion 2
(I) Patents sha ll be gran ted only for inventions, which are new in relat ion to the state of theart prior to the date of filing of the patent application and which, moreover, differ essentiallytherefrom.
(2) The state of the art shall be held to comprise everything made avai lable to the pub lic bymeans of a written desc ription, lecture, exploitation or in any other way. The contents of patentapplications filed in this country before the saiddate of filing shall also be regarded as comprisedin the state of the art, if such app licatio ns aremade avai lable to the public in acco rdance withthe rules in sectio n 22 of this Act. The same shallapply to the contents of applications for registration of utility models filed in this country beforethe said date of filing, if such applicatio ns are
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made available to the publ ic in accordance withthe rules relating to utili ty models. The requirements in subsect ion I hereof to the effec t that theinvention sha ll differ essentially from the state ofthe art shall, however, not apply in relation to thecontents of such appli cations.
(3) Provisions to the effec t that for the purposes of subsection 2 hereof applica tions providedfor in Part 3 of this Act shall in certain cases havethe same effec t as patent applicat ions filed in thiscountry are laid down in sectio ns 29 and 38 ofthi s Act.
(4) The requirement under subsection 2 hereofthat inventions be new shall not prevent the grantof patents for known substances or compoundsfor use in the meth ods referred to in section 2 (3)of this Act, provided that the use of such substance or compound is not known for any ofthose methods.
(5) Patents may, however, be gra nted for inventions irres pective of the fact that they havebeen made avai lable to the publi c with the last 6months prior to the filing of the application, ifthis is a conseq uence of(i) evident abuse in relation to the applicant or
his legal predecessor, or(ii) the fact that the applicant or his legal prede
cessor has displayed the invent ion at an officia l, or officially recognized, internation alexhibition falling within the terms of theConvention on International Exhibitions,signed at Par is on 22 November 1928.
Section 3
(I) The excl usive right conferred by a patentsha ll imp ly that no one, except the proprieto r ofthe patent, may without permission exp loit theinventi on(i) by making, offe ring, putting on the market
or using a produ ct which is the subject-matter of the patent , or by importi ng or possessing the product for these purposes, or
(ii) by using a process which is the subject-matter of the patent or by offering the processfor use in this country, if the person offeringthe process knows, or it is obvious in the circumstances that the use of the process is prohibited without the consent of the proprietorof the patent , or
(iii) by offe ring, puttin g on the market or using aproduct obtai ned by a process which is the
subject-matter of the patent or by importingor possessing the product for these purpo ses.
(2) The exclusive right shall imply that no one,except the proprietor of the patent , may withoutpermission exploit the invention by supplying oroffering to supply any person who is not entitledto exploit the invention with means for workingit in this country, if these means relate to an essential element of the invention and the personsupplying or offering to supply the meansknows, or it is obvious in the circumstances, thatthese means are suitable and intended for suchuse. This provi sion shall not apply when themeans are staple commodities, except when theperson supplying or offering to supply the meansinduces the person supplied to commit acts as referred to in subsection I hereof. For the purposeof the Ist and 2nd clause hereof, persons performing acts as referred to in subsection I hereof. Forthe purposes of the Ist and 2nd clause hereof, persons performing acts as referred to in subsection3 (i), (iii) or (iv) hereof shall not be consideredentitled to exploit the invent ion.
(3) The exclusive right shall not extend to:(i) acts done for non-commercial purpo ses,(ii) acts concerning products put on the market
in this country or in another country withinthe European Economic Area (EEA) by theproprietor of the patent or with his con sent ,
(iii) acts done for experimental purposes relatingto the subject-matter of the patented invention, or
(iv) preparation in a pharmacy of a medicinalproduct accord ing to a prescription in individual cases or acts concerning the medicinal product so prepared.
Section 3a
(I) The protection conferred by a patent on abiological material possessing specific chara cteristics as a result of the invention shall extendto any biological material derived from that biological material through propagation or multiplication in an identical or divergent form and possess ing those same characteristics.
(2) The protection conferred by a patent on aprocess that enables a biological material to beproduced possessing specific chara cteristics as aresult of the invention shall extend to biologicalmaterial directly obtained through that proces sand to any biological material through propaga-
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tion or multiplication in an identical or divergentform and possessing those same characteristics.
(3) The protection conferred by a patent on aproduct containing or consisting of genetic information shall extend to all material in whichthe product is incorporated and in which the genetic information is contained and performs itsfunction , cf., however, Section Ia.
(4) The protection reffered to in (I), (2) and (3)shall not extend to biological material obtainedfrom the propagation or multiplication ofbiological material placed on the market in the territoryof a Member State by the propri etor of the patentor with his consent, where the multiplication orpropagation necessarily result s from the application for which the biological material was marketed, provided that the material obtained is notsubsequently used for other multiplication orpropagation.
Section 3b
(1) Notwithstanding the provisions in Section3a, / 1-3), the sale or other form of commercialisation of plant propagating material to a farmerby the proprietor ofthe patent or with his consentfor agricultural use implies authorisation for thefarmer to use the product of his harvest for propagation or multiplication by him on his ownfarm, the extent and conditions ofthis derogationcorresponding to those under Article 14 of Regulation (EC) No. 2100/94 on Community plantvariety rights.
(2) Notwithstanding the provision s in Section3a, /1-3), the sale or any other form of commercialisation of breeding stock or other animal reproductive material to a farmer by the proprietorof the patent or with his consent implies authorisation for the farmer to use the animal or otheranimal reproductive material for the purpo se ofpursuing his agricultural activity but not to sell itwithin the framework or for the purpo se of acommercial reproduction activity. The Ministerfor Business and Industry shall lay down provisions concerning the extent and conditions of thefarmer's exploitation of such patents for the purposes of pursuing his agricultural acti vity.
Section 4
(1) Any person who, at the time when the patent application was filed, was exploiting the invention commercially in this country may, not-
withstanding the grant of a patent , continue suchexploita tion retain ing its general charac ter, provided that the exploitation did not constitute anevident abuse in relati on to the applicant or hislegal predecessor. Such a right of ex ploitationshall also, under similar conditions, be enjoyedby any person who had made substantial preparations for commercia l exploitation of the invention in this country.
(2) Th e right provided for in subsec tion I hereof shall only be transferred to others togetherwith the business in which it has arisen or inwhich the exploitation was intended .
Sec tion 5
(I) Not withstanding a patent having beengranted for an invention, persons other than thepropri etor of the patent may exploit the invention by the use of a foreig n vehicle, vessel or aircraft when it temp oraril y or acc identally entersthis co untry.
(2) The Minister for Business and Industrymay direct that, notwithstanding the gra nt of apatent , spare parts and accessories for aircraftmay be imported into and used in this country forthe rep air of aircraft belon ging to a foreign statewhich grants similar right s in respect of Danishaircraft.
Sec tion 6
(1) Application for a patent of an inventionwhic h no earlier than 12 month s prior to the dateof application has been stated in an applicationrelating to patent or utilit y model registration inthis co untry or patent , inventor's certificate orutility model protection in another countrywhich has joined the Paris Convention of 20th
March 1883 co ncerning the protection of industrial own ership shall in relation to sec tions 2( I) ,2(2) and 2(4) together with sec tion 4 of this Order on request be seen as being filed at the sametime as the earlier application. The same right ofprior ity shall apply eve n if the appli cation forprotect ion does not orig inate from a countrywhich has joined the convention when an ident ica l priority from a Danish patent application orutil ity model application pursuant to bilateral ormultilateral agree ment is allowe d in the countryin which the earlier application was filed and thisis on conditions and with effects which substantially co mply with the convention.
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(2) The Minister for Business and industryshall lay down the particulars of the right toclaim such priority.
Part 2
Patent applications and examination and otherprocessing thereofetc,
Section 7
(1) The Patent Authority of this country shallbe the Patent and Trade Mark Office, headed bya Director General , and the Patent Board of Appeal (Board of Appeal for Industrial Property).For the purposes of this Act , the "Patent Authority" mean s the Patent Authority of this country,unless otherwise stated.
(2) The Patent Board of Appeal shall be established by the Minister for Business and Industryfor the examination of appeals from decision ofthe Patent and Trade Mark Office, cf. sections 25and 67 of this Act , and appeals from decisionspursuant to the Danish Designs Act, the Dani shTrade Marks Act , etc. The Patent Board of Appeal shall consist of not more than 18 memberswho shall be appointed for a term of5 years. 2 ofthe memb ers, one of whom shall be the chairman , shall possess the general qualifications forappointment to the office of High Court judgewhereas the other members together shall possess the best possible expert knowledge of patents, designs, trade marks and matters placed under the authority of the Patent Board of Appealby other legislation. They shall be graduatesfrom the Technical University of Denmark(Danmarks Tekniske Hejskole), another institution of higher education or have acquired thenecessary expert knowledge in another way .
(3) Havin g regard to the circumstances of eachparticular case, the chairman shall decide whichand how many of the members of the Board ar toparti cipate in the examination of the case.
(4) The Mini ster for Busine ss and Industryshall lay down further rules for the activities ofthe Patent Board of Appeal including rules relating to proceedings and rules to the effect that theappellant shall pay a fee for the examination ofan appeal.
Section 8
(I) An appli cation for a patent shall be filed
with the Patent Authority or, in the case s referredto in Part 3 of this Act, with the patent authorityof a foreign state or with an international organisation.
(2) The application sha ll contain a descriptionof the invention, including drawin gs where necessary, and a precise statement of the matter forwhich protection by the patent is sought (one ormore claims). The fact that the invention relat esto a chemical compound shall not imply that specific use must be indicated in the claim. The description shall be sufficiently clear to enable aperson skilled in the art to carry out the inven tion . An invention which relates to or involvesthe use of biological material sha ll, in the casesspecified in section 8 a of this Act, only be regarded as disclosed in a sufficient clear manner,if also the requirements of section 8 a are fulfilled.
(3) The application sha ll also contain an abstract of the descript ion and claims. The abstrac tshall merely serve for use as techni cal information and may not be taken into acco unt for anyother purp ose.
(4) The name of the inventor shall be indicatedin the application . If the applicant is not the inventor, he shall prove his right to the invention.
(5) The applicant shall pay the prescr ibed application fee. For the patent application the prescribed renewal fee in respect of each fee yearbeginning before the application is finally decided upon shall also be paid. The fee year shallcomprise I year and shall the first time be reckoned from the date of filing of the appli cationand there after from the co rresponding day of thecalendar year.
Sec tion 8 a
(1) If, in order to carry out the inventi on , thisinvolves the use of biological material whi ch isneither available to the publ ic nor describable inthe documents of the applica tion so as to enablea person skilled in the art to carry out the invention, a sample of the biolo gical mater ial shall bedeposited not later than on the date of filing ofthe application. The sample shall thereafter always be deposited in such manner that any person entitled under this Act to a sample of the biological material may have the sample furni shedin Denm ark . The Minister for Business and Industry shall lay down rule s as to where depositsmay be made.
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(2) If a deposited sample ceases to be viab le, orif for any other reason a sample canno t be furnished, the sample may be replaced by a newsample of the biological mater ial within the prescribed period and otherw ise in accordance withrules laid down by the Min ister for Busine ss andIndu stry. If so, the new deposit shall be deemedto have been made already on the date of the previous deposit.
Sec tion 9
If the applicant so requests and pays the prescr ibed fee , the Patent Authority shall, in accordance with rules laid down by the Minister forBusiness and Industry, cause the app lication tobe sea rched by an International Searching Authority under the provision s o f Article 15 (5) ofthe Patent Co-o peration Treaty, done at Was hington on 19 June 1970.
Sec tion 10
In the same applica tion a patent may not be applied for in respect of two or more mutu ally independ ent inventions.
Sec tion 11
If a patent is applied for in respect of an invention which is disclosed by the applicant in an earlier patent application in which no final decisionhas been given, the later application shall, at therequest of the applica nt and on the condition slaid down by the Mini ster of Business and Industry, be deemed to have been filed at the timewhen the docum ent s disclosing the inventi onwere received by the Patent Authorit y.
Sec tion 122)
The Patent and Trade Mark O ffice may invitethe applicant to appoi nt an agen t residing in TheEuropean Economic Area (EEA) to represe nthim in all matters re lating to the application. Thename and address of the age nt sha ll be entered inthe Register of Patent s.
Sec tion 13
An application for a patent may no t be amended in such a way that protection is cla imed forsubjec t-matter whic h was not disclosed in theapplicat ion at the time when it was filed .
Section 14
(Repealed)
Section 15
(1) If the applicant has not complied with therequirements of the application, or if the PatentAuthority has other objections to the acceptanceof the application, the applicant shall be notifiedaccordingly and be invited to file his observations or to correct the application within a timelimit to be specified. The Patent Authority may,however, make such amendments in the abstractas it finds necessary without consulting the applicant.
(2) If the applicant fails to file the required observations or to take steps to correct the application within expiry of the time limit, the application shall be shelved. The notification referred toin subsection I hereof shall contain informationto that effect.
(3) The examination of the application shall,however, be resumed if the applicant submits hisobservations or takes steps to correct the application within 4 months after expiry of the specifiedtime limit and pays the prescribed resumptionfee.
(4) Ifany renewal fee is not paid according tosections 8, 41 and 42 of this Act, the applicationshall be shelved without previous notification. Inthe case of an application shelved for that reasonthe proceedings for grant may not be resumed.
Section 16
If, after having received the applicant's reply ,the Patent Authority still has objections to the acceptance of the application, and the applicant hashad an opportunity to comment on the objections, the application shall be refused, unless thePatent Authority considers it necessary oncemore to invite the applicant under section 15 (1)of this Act.
Section 17
(1) Ifany person claims before the Patent Authority that he, and not the applicant, is entitledto the invention, the Patent Authority may, if itfinds the question doubtful, invite him to bring itbefore the courts within a time limit to be specified. If the invitation is not complied with, thePatent Authority may disregard the claim when
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deciding on the patent application. Informationto that effect shall be given in the invitation.
(2) If legal proceedings have been institutedconcerning the right to an invention for which apatent has been applied for, the proceedings forgrant may be suspended, until a final decisionhas been given in the legal proceedings.
Section 18
(1) Ifany person proves to the Patent Authority that he, and not the applicant, is entitled to theinvention, the Patent Authority shall transfer theapplication to the said person, if he so requests.The transferee shall pay a new application fee.
(2) If a request has been made for the transferof a patent app lication, the application shall notbe shelved, refused or accepted until a final decision has been made on the request.
Section 19
(1) If the application complies with the requirements, and no objections have been foundto the grant of a patent, and it has been established that the applicant approves the text on thebasis of which patent may be granted, the PatentAuthority shall notify the app licant to the effectthat patent may be granted against payment ofthe prescribed fee for publication of the patentspecifications.
(2) After the Patent Authority has submittednotification as mentioned in subsection I the patent claim s shall not be amended in such a manner that the scope of the patent protection is extended.
(3) The fee for publication of the patent specifications shall be paid within 2 months after thePatent Authority has forwarded a notificationunder subsection I hereof. Failure to do so shallcause the application to be shelved. However,proceedings will be resumed, if the applicantpays the patent grant fee and the prescribed resumption fee within 4 months after expiry of thetime limit.
Section 20
(1) When the requirements in section 19 of thisAct have been complied with, the Patent Authority shall grant the patent and issue letters patent.The grant of patent shall be advertised at thesame time .
(2) Patent specifications including description,
claims and abstract shall be obtainable from thePatent Authority at the same time as the grant ofpatent is advertised. The patent spec i fi cat i~ns
shall state the proprietor of the patent and the In
ventor.
Section 21
(1) Any person shall be entitled to file an opposition with the patent Authority against ay atent, which has been granted. The oppositronshall state the grounds on which the opposition isfiled and shall be submitted to the Patent Authority within 9 months from advertisement of thegrant of patent. The opposition shall be accompanied by the prescribed fee.
(2) An opposition shall only be filed on thegrounds that the patent has been granted irrespective of the fact that(i) the requirements of Sections I and 2 of this
Act are not complied with,(ii) it relates to an invention which has not been
described in a suffic iently clear manner as toenable a person skilled in the art to carry outthe invention on the basis of the description ,or
(iii) the subject-matter extends beyond the contents of the application filed.
(3) The Patent Authority shall advertise the filing of an opposition .
Section 22
(1) As from the date on which patent is granted, the files of the application shall be availableto the public.
(2) When 18 months have elapsed from thedate of filing or, ifpriority has been claimed under section 6 of this Act, from the date on whichpriority is claimed , the files shall be available to,the public, even if patent has not been granted. Ita decision has been made to shelve or to refusethe application, the files shall, however, not beavailable unless the applicant requests resumption of the proceedings, appeals against the refusal or requests re-establishment of rights undersections 72 or 73 of this Act.
(3) At the request of the applicant, the ti lesshall be made available earlier than prescribed insubsections I and 2 hereof.
(4) When the files are made available undersubsection 2 or 3 hereof, a notice to that effectshall be published.
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(5) II' a document contains business secretswhich do not relate to an invent ion for whichpatent is applied or has been granted, the PatentAuthority may, on request, when circumstancesmake it desirable, decide that the document shallnot be available or only available in part. If sucha request has been filed, the docum ent shall notbe made available until a decision has been madeor during the period within which the decisionmay be appealed against. An appeal shall havesuspensive effect.
(6) If a sample of biological material has beendeposited under section 8 a of this Act, any person shall have the right to obtain a sample whenthe files become avai lable under subsections I, 2or 3 hereof. After the patent has been granted,and notwithstanding revocation or cancellationof the patent, furnishing may be made to anyonerequesting it. This does not imply, however, thatany sample shall be furnished to any person who,according to the rules laid down in or pursuant tolaw, is not allowed to handle the deposited material. Nor shall any sample be fum ished to anyperson if, due to the dangerous propertie s of thematerial, his handling of the sample is supposedto involve obvious danger.
(7) Notwithstanding subsection 6 hereof, theapplicant may request that, until a patent hasbeen granted, the furnishing of a sample shallonly be effected to an expert in the art. If an application is refused, withdrawn or deemed to bewithdrawn, the applicant may request that a sample of the deposited material shall only be furnished to an expert in the art for 20 years fromthe date on which the patent application wasfiled. The Minister for Business and Industryshall lay down provisions for the submission ofa request for furnishing, for the time limit forpresenting such requests and prescribing whomay be used as en expert.
(8) The request for the furnishing of the sample shall be filed with the Patent Authority a~d
shall contain a declaration to observe the restrictions on the use of the sample which appear fromrules laid down by the Minister for Business andIndustry. If the sample is to be furnished to anexpert in the art, the declaration shall instead begiven by the latter.
Section 23
(1) II' an opposition has been tiled , the proprietor of the patent shall be notified accordingly
and be given an opportunity to file his observations on the oppo sition .
(2) The Patent Authority may examine an opposition eve n though the patent has terminatedor wi ll terminate under sections 51, 54 or 96 ofthis Act, even if the oppos ition is withdraw n, oreven if the opponent dies or loses his capacity toenter into legal transactions.
(3) The Patent Authority may revoke a patentor maintain it unamended or amended. If the Patent Authority finds that the patent may be main tained as ame nded, and it has been establishedthat the proprietor of the patent consen ts to this,the patent spec ifications sha ll be ame nded according ly after the pro prietor of the patent haspaid the prescribed fee for publi cation hereof.Copies of the amended patent spec ifica tionsshall be obtainab le from the Patent Authority.
(4) II' the proprietor of the patent does not approve the main tenance of the patent as ame ndedor does not pay the fee for publ icat ion of newpatent specifications in time, the patent shall berevoked.
(5) The Patent Authority shall adverti se its decis ion on the opposition.
Section 24
(1) An appeal from the final decision of thePatent Office concerning a patent applicationmay be tiled by the applicant with the PatentBoard of Appea l. The proprietor of the patentmay file an appea l with the Patent Board of Appeal, if a patent has been revoked, or if the PatentOffice finds that the patent may be maintained asamended followi ng an opposi tion. The opponentmay file an appeal with the Patent Board of Appea l, if a patent is maintained unamended , or ifthe Patent Office finds that the patent may bemaintained as amended despite a duly filed opposition. If the opponent withdraws his appea l,such appeal may neve rtheless be examined whencircumstances make it desirable.
(2) Dec isions refusing a request for resumption under section 15 (3), or sec tion 19 (3) of thisAct or com plying with a request for transfer under sec tion 18 of this Act may be appealedagai nst by the app licant. Decisions rejec ting a request for the transfer of the application may beappea led against by the person making the request.
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(3) Decision s refu sing a request under section22 (5) of this Act may be appealed against by theperson making the request.
Section 25
(1) Appea ls und er section 24 of this Act sha llbe filed with the Patent Board of Appea l not laterthan 2 months after the date on which the partyconcerned was notified of the deci sion by thePatent Office. The prescribed fee shall be paidwithin the same time limit. Failure to do so shallcause the appeal to be refu sed .
(2) The decisions of the Patent Board of Appeal may not be brought before any higher admini strative authority.
(3) Proceedings to test deci sion s of the PatentOffice which may be appealed against to the Patent Board of Appeal may not be brought beforethe courts until the deci sion of the Patent Boardof Appeal has been given, cf. however secti on s52 and 53 of this Act. Proceedings to test decisions by which the Patent Board ofAppeal refu ses an appli cation for a patent or revokes a patentshall be brought within 2 months after the dateon which the party concerned wa s notified of thedecision.
(4) The provisions of section 22 (5) of this Actsha ll apply mutatis mutandis with respect to document s received by the Patent Board of Appeal.
Sec tion 26
If an application which is available to the Public is finally refused or shelved, notice hereofsha ll be publ ished .
Sec tion 27
Granted patent s shall be entered in a Registerof Patents whi ch shall be kept by the Patent Authority.
Part 3
International patent app licat ions
Section 28
(1) An "internation al patent application"means an appli cation under the Patent Cooperation Treaty, done at Washington on 19 Jun e1970.
(2) An internat ional patent application shall befiled with a patent authority or an international
Organisation which is competent under the Treaty and the Regulations to receive such application (receiving Office). An international patentapplication may be filed with the Patent Authority of this country in accordance with rules laiddown by the Minister of Busines s and Industry .The applicant shall pay the fee prescribed for theapplication to the Patent Authority .
(3) The provisions of sections 29 to 38 of thisAct shall apply to international patent applications designating Denmark.
Section 29
An international patent application which hasbeen accord ed an international filing date by thereceiving Office shall have the same effect as apatent application filed in this country on thatdate. The provision ofsection 2 (2), 2nd clause , ofthis Act shall, however, not apply unless the application has been proceeded with under section31 of this Act.
Section 30
An international patent application shall beconsidered withdrawn as far as Denmark is concerned in the cases referred to in Article 24 ( I) ,(i) and (ii), of the Treaty .
Section 31
(1) If the applicant wishes to proceed with aninternational application with respect to Denmark, he shall within 20 months from the international date of filing or, if priority is claimed,from the priority date pay the prescribed fee tothe Patent Authority and file a translation intoDanish of the international application to the extent prescribed by the Minister for Business andIndustry or, if the application is written in Danish, a copy of the application.
(2) If a request is made by the applicant to subject an international application to an international preliminary examination , and if within 19months from the date referred to in subsection 1hereof he declares, in accordance with the Treaty, that he intends to use the result s of that examination in Denmark (election of Denmark), heshall compl y with the requirements of subsection I hereof within 30 months from the saiddate.
(3) If the applicant has paid the prescrib ed feewithin the time limits fixed in subsections I and
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2 hereof, the prescribed translation or copy maybe filed within a further period of 2 months provided that a prescribed additional fee is paid prior to expiry of the further period .
(4) If the applicant fails to fulfil the requ irement s of this section, the application shall beconsidered withdrawn as far as Denmark is concerned .
Section 32
If the applicant withdraws a reque st for an international preliminary examination or an elec tion of Denmark, the international patent application shall be considered withdrawn as far asDenmark is concerned, unless the withdrawalhas been effected prior to the expiry of the timelimit applicable under section 31 (I) of this Act ,and the applic ant proceeds with the applicationprior to the expiry of the time limits laid down insection 31 (I ), cf. subsec tion 3, of this Act.
Section 33
(1) When an international patent applicationhas been proceeded with under section 31 of thisAct , the provisions of Part 2 of this Act shall apply to the application and the examination andfurther proce ssing thereof with the deviationsprovided for in this section and in sections 34 to37 of this Act. The examination and furtherproce ssing of the application shall only be commenced prior to the expiry of the time limits applicable under section 31 ( I) or (2) of this Act , ifthe applicant so requests.
(2) The provision of section 12 of this Actshall only be applicable as from the time whenthe Patent Authority may commence the examination and other proce ssing of the application.
(3) The provisions of section 22 (2) and (3) ofthis Act shall apply even before the applicationhas been proceeded with when the applicant hascomplied with his obligation under section 31 ofthis Act to file a translation of the application or,if the application is writt en in Danish, when theapplicant has filed a copy thereof with the PatentAuthority.
(4) For the purpo ses of sections 48,56 and 60of this Act, an internat ional patent applicationshall be deemed to have been made available tothe public when it has been made available undersubsection 3 hereof.
(5) If the application complies with the re-
quirements relatin g to form and contents provided for in the Treaty, it shall be accepted in thatrespect.
Section 34
Patent shall only be granted or refused in respect of an international patent application afterexpiry of the time limit laid down by the Minister for Business and Industry, unless the applicant has consented to the application being decided upon prior thereto .
Secti on 35
Without the consent of the applicant, the Patent Authority shall not grant a patent for an international patent appli cation or publi sh it prior toits publication by the International Bureau of theWorld Intellectual Property Organization(WIPO) or prior to the exp iry of 20 months fromthe international filing date or, if priority isclaimed , from the date of prior ity.
Section 36
(1) Ifany part of an international patent application has not been the subject of an international sea rch or an international preliminary examination because the application has been deemedto relate to two or more mutuall y independent inventions, and the applicant has not paid the additional fee under the Treaty within the prescribedtime limit , the Patent Auth ority shall review thefinding to determin e whether it was j ustified. Ifthis is found to be the case, the said part of theappli cati on shall be considered withdrawn before the Patent Author ity, unless the applicantpays the prescribed fee within 2 month s afte r thedate on which the Patent Authority notifi ed himof the result of the review. If the Patent Authorityconsiders that the findin g was not justified, itshall proceed with the examination and otherprocessing of the application in its entirety.
(2) The applicant may appea l agai nst a decision under subsec tion I hereof by which an application is found to relate to two or more mutually independent inventi ons. The provisions ofsection 25 ( I) to (3) of this Act shall apply mutatis mutandis.
(3) If the appeal is dismissed, the time limit forpayment of the fee under subsection 1, 2nd
clause, hereof shall be calculated from the dateon which the final decision is give n.
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Section 37
If any part of an intern ational application hasnot been the subject of an intern ational preliminary examination because the appl icant has restric ted the claims at the demand of the international Preliminary Examination Authority, thatpart of the application shall be con sidered withdrawn before the Patent Authority , unless the applicant pays the prescribed fee wi thin 2 monthsafter the date on which the Patent Authority invited him to pay with reference to the restrictionof the examination carried out.
Section 38
(1) If a receiving Office has refu sed to accordan international filing date to an internationalpatent application, or ifit has decided that the application or the designation of Denmark shall beconsidered withdrawn, the Patent Authorityshall, at the request of the applicant, review thedeci sion to determine whether it was ju stified.The same shall appl y to any deci sion from theInternational Bureau according to which an applicat ion shall be considered withdrawn.
(2) A request for a review under subsec tion Ihereof shall be presented to the International Bureau prior to the expiry of a time limit laid downby the Minister for Business and Industry. Theapplicant shall, prior to the expiry of the sametime limit and to the extent prescribed by theMinister for Business and Industry, file a translat ion of the application with the Patent Authority and pay the prescribed appl ication fee.
(3) If the Patent Authori ty finds that the decision of the rece iving Office or the Internat ionalBureau was not justifi ed, the Patent Authorityshall examine and process the application underPart 2 of this Ac t. If no international fi ling datehas been acco rded by the receiving Offi ce, theap plication shall be deemed to have been filed onthe date which in the opinion of the Patent Authority should have been accorded as the intern ational filing date. If the appli cation complieswith the requirements relating to form and content s provided for in the Treaty, it shall be acce pted in that respect.
(4) The provision of section 2 (2), 2nd clause,of this Act shall apply to applications to be examined and processed pursuant to subsection 3hereof, prov ided that the application is made
avai lable to the publ ic under section 22 of thisAct.
Part 4
Extent ofthe protection and term ofthe patent
Sectio n 39
The extent of the prot ection confe rred by apatent shall be determined by the claim s. for theinterpretation of the claims the descr ipt ion mayserve as a guide .
Section 40
A granted patent may be maintained until 20yea rs have elapsed from the date of filing of thepatent application. A renewal fee sha ll be paidfor the patent in respect of eac h fee yea r begi nning after the grant of the patent.
Part 5
Payment ofrenewal f ee
Section 41
(1) The renewal fee sha ll fall due on the lastday of the month in which the fee year beg ins.The renewal fee in respect of the first two feeyears sha ll, however, only fall due at the sametime as the fee in respect of the third fee year.Renewal fees may not be paid earlier than 3months before the due date.
(2) For a later application as provided for insection II of this Act, the renewal fee in respectof fee years having begun befo re the date of filing of the later applicat ion or beginn ing within 2months afte r that date sha ll in no case fall due before 2 month s have elapsed afte r the sa id date.For an international patent application, renewalfee, in respect of fee yea rs having begun beforethe date on which the applicat ion was proceededwith under section 3 1 of this Act or taken up forexa mination and other processing under sec tion38 of this Act or beginning within 2 months afterthat date shall in no case fall due before 2 monthshave elapsed after the dat e on which the application was proceeded with or taken up for exa mination and other processing.
(3) Any renewal fee may, together with theprescribed , additio nal fee, be paid within 6months afte r its due date.
(4) The Danish Patent and Trademark Office
11
sha ll collect renewal fees from the applicant orthe prop rietor of the patent or an appointedage nt, if any, but the Danish Patent and Trademark office shall not be held responsible for lossof rights as a consequence of failure to collec t.
Section 42
(1) If the invent or is the applicant or the proprietor of the patent , and if it is deemed to invo lve great difficulti es for ham to the renewalfees, the Patent Authority may grant him a respite for the payment thereof, provided that a request to that effect is submitted not later than onthe date on which the renewal fees fall due forthe first time. Respites may be granted for up to3 yea rs at a time, but no longer than until 3 yearshave elapsed from the grant of the patent. Anyreq uest for a prolongation of a respit e shall besubmitted not later than on the date on which thegranted respite ex pires.
(2) If a request for a respit e or a prolongat ionof a respite is refused, payment within 2 month sthereaft er shall be regarded as payment in duetime.
(3) Any renewal fee for the payment of whicha res pite has been granted according to subsection I hereof may, togeth er with the same additional fee as refe rred to in sect ion 41 (3) of thisAct, be paid within 6 months after the date untilwhic h the respite has been granted.
Part 6
Licensing, transfer, etc.
Section 43
If the propri etor of the patent has granted another person a right to exploit the inventi on commercially (l icense), the licensee may not transferthat right to others in the absence of an agreement to the con trary .
Section 44
(I) The transfer of a patent, the gra nt of a license, pledging or exec ution proceedin gs leviedon the patent or the commenceme nt of insolvency proceedings agai nst the proprietor shall, onrequest, be record ed in the Register of Patents.
(2) If it is proved that a regis tered license hasterminated, the license sha ll be deleted from theRegister.
(3) The provisions of subsections I and 2 hereof shall also apply to compulsory licenses andrights under section 53 (2) of this Act.
(4) Legal proceedings in respect of a patentmay always be brought against the person who isentered in the Register as proprietor of the patent, and any notification from the Patent Authority may be sent to him.
Section 45
(1) If a patent invention is not worked to a reasonable extent in this country when 3 years haveelapsed from the grant of the patent and 4 yearshave elapsed from the filing of the patent application, any person wishing to work the inventionin this country may obtain a compulsory licenseto do so, unless there are legitimate reasons forfailure to work the invention.
(2) The Minister for Business and Industrymay direct that for the purposes of subsection Ihereof working of the invention in another country shall be equivalent to working in this country.Such a provision may be made subject to reciprocity.
Section 46
(1) The proprietor of a patent for an invention,the use of which is dependent on a patent or aregistered utility model which belongs to another person may obtain compulsory license for useof the protected invention of the latter patent orthe protected model on utility model registrationif the former invention makes up an essentialtechnical progress of substantial economic importance.
(2) The proprietor of the patent of the invention or of the registered utility model for whichuse compulsory license has been granted pursuant to the provision in (I) shall on reasonableterms be able to obtain compulsory license foruse of the other invention.
Section 46 a
(1) An owner ofa variety who cannot obtain orexploit a plant variety right without infringing aprior patent may apply for a compulsory licensefor use of the invention, where the compulsorylicense for the exploitation of the plant variety tobe protected, against payment of an appropriateroyalty. Compulsory license will only be grantedprovided that the owner of the variety proves that
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the variety constitutes essential technicalprogress of substantial economic importance inrelation to the invention.
(2) Where , under the Danish Plant VarietyProtection Act, a proprietor of a patent has obtained a compulsory license to exploit a protected plant variety, the owner of the plant varietyhas the right , on reasonable terms, to obtaincross-license for use of the invention.
Section 47
When required by important public interests,any person who wishes to exploit an inventioncommercially for which another person holds apatent may obtain a compulsory license to do so .
Section 48
(1) Any person who, in this country, at thetime when a patent application was made available to the public, was commercially exploitingthe invention for which a patent is applied for,may, if the application results in a patent, obtaina compulsory license to exploit the invention, ifvery special circumstances make it desirable,and he had no knowledge and could not reasonably have obtained any knowledge of the application. Such a right shall also, under similar conditions, be enjoyed by any person who had madesubstantial preparations for commercial exploitation of the invention in this country.
(2) Such a compulsory license may include thetime preceding the grant of the patent.
(3) The Minister for Business and Industrymay direct that for the purposes of subsection Iherof exploitation of the invention in anothercountry shall be equivalent to exploitation in thiscountry. Such a provision may be made subjectto reciprocity.
Section 49
(1) Compulsory license shall only be grantedto persons who by agreement have neot beenable to obtain license on reasonable terms andwho may be regarded as being able to make useof the invention in a reasonable and proper manner and in compliance with the license.
(2) A compulsory license shall not prevent theproprietor of the patent from exploiting the invention himself or from granting licenses to others .
(3) Compulsory license can only be trans-
ferred to others together with the establishmentin which it is used or in which the utilisation wasintended. For compulsory license filed in accordance with Section 46( I) it shall moreover beapplicable that transfer of compulsory licenseshall take place together with the patent the useof which is dependent on a patent or a registeredutility model which belongs to another person.
(4) Compulsory license concerning semiconductor technology can only be filed for public ,non-commercial use or for terminating an anticompetitive practice, which has been establishedby decree or administrative decision .
Section 50
(I) The Copenhagen Maritime and Commercial Court shall decide as the court of first instance whether a compulsory license shall begranted and shall also determine the extent towhich the invention may be exploited, fix thecompensation and lay down the other term s ofthe compulsory license. If circumstances shouldchange considerably, the Court may , at the request of either party, cancel the licen se or laydown new terms of the license.
Part 7
Termination ofpatent, administrative reexamination, etc.
Section 51
If any renewal fee is not paid in accordancewith the rules laid down in sections 40 , 41 and 42of this Act , the patent shall lapse as from the beginning of the fee year in respect of whi ch the feehas not been paid.
Section 52
(I) A patent may be revoked by a court decision if:(i) it has been granted notwith standing that the
requirements under Sections I and 2 of thisAct are not complied with
(ii) it relates to an invention which is not disclosed in a manner sufficiently clear to enable a person skilled in the art to carry out theinvention,
(iii) its subject-matter extends beyond the contents of the application as filed, or
(iv) the protection conferred by the patent has
13
been extended after the Patent Authority hasnotified the applicant that patent will begranted.
(2) A patent may, however, not be revoked inits entirety on the gro und that the proprietor ofthe patent was only partially entitled to the patent.
(3) With the exceptions provided for in subsection 4 hereof proceedin gs may be institutedby any person.
(4) Proceedin gs on the ground that the patenthas been grant ed to another person than the oneentitled thereof under section I of this Act, mayonly be instituted by the person claiming to beentitled to the patent. Such proceedin gs shall bebrou ght within I year after the entitled personobt ained knowledge of the grant of the patentand of the other circumstances on which the proceedings are based . I fthe proprietor of the patentwas in goo d faith when the patent was granted orwhen he acquired the patent , the proceedingsmay not be brought later than 3 yea rs after thegra nt of the patent.
Sec tion 53
(1) If a patent has been granted to another person than the one entitl ed thereto under sec tion Iof this Act, the court shall tran sfer the patent tothe entitled person, if he so claim s. The provisions of sec tion 52 (4) of this Act conce rning thetime for institution of the proceedin gs shall apply mutatis mutandis,
(2) The person who is depri ved of the patentsha ll, if he in good faith is exploiting the invention commercially in this country or has madesubstantial preparations for such exploitation, beentitled, for a reasonable compensation and onrea sonable conditions in other respects, to continue the exploitation alread y commenced or toimpl ement the planned exploitation retainin g itsgenera l character. Such a right sha ll also, underthe same conditions, be enjoyed by holders ofregistered licenses.
(3) Rights under subsec tion 2 hereof may onlybe transferred to others together with the business in which they are exploited or in which theexploitation was intended .
Sec tion 53 a"
Proce edin gs instituted as to revo cation whil ean oppos ition pursuant to Section 2 1 remains to
be conclusively considered by the Patent Authority may be suspended by the court until a final decision has been made by the Patent Authority.«
Section 53 b4)
(1) Any person may file a request with the Patent Authority to the effect that a patent grantedby the Patent Authority or granted with effect forDenmark pursuant to Section 75 be re-examined.
(2) A request pursuant to subsection I may notbe filed during the period allowed for opposition,or as long as an opposition remains to be finallydecided upon. Where proceedings before thecourt as to a patent remain to be finally decidedupon, a request pursuant to subsection I may notbe filed as to the patent in question.
(3) Where proceedings as to a patent arebrought before the court prior to a fina l decisionon a request pursuant to subsection I relating tothe same patent, the Patent Authority shall temporarily shelve the consideration of the requestpending the conclusive sett lement of the proceedings, unless the request has been filed by thepatent holder.
(4) Where a request for re-examination hasbeen filed, the patent holder shall be notifiedthereof and be invited to file his observations.The Patent Authority shall advertise the filing ofa request for re-examination.
(5) The Patent Authority may consider a request for re-examination, even where the patenthas terminated or will terminate pursuant to Sections 51, 54, or 96. The Patent Authority mayalso consider the request, even where the requestis withdrawn, or the person having requested there-examination dies or loses his capacity to enterinto legal transactions.
(6) The request as to administrative re-examination shall pursuant to subsection I be accompanied by the prescribed fee.«
Section 53 c
(1) A request for re-examination by personsother than the proprietor of the patent shall onlybe filed on the grounds for revocation referred toin section 52 (I) of this Act.
(2) The Patent Authority may revoke the patent or maintain the patent, amended or unamended. The Patent Authority shall examine whetherthe request can be met, and, if so, whether the
14
grou nds referred to in section 52 (I) of this Actwill prevent the patent from being maintained asamended.
Section 53 d
(1) If a request from persons other than theproprietor of the patent cannot be met, the request shall be refused, and the patent shall bemaintained unamended.
(2) If the request is met, but the patent cannotbe maintained as amended, the Patent Authorityshall revoke the patent. If the patent may bemaintained as amended, the patent shall beamended accordingly, if the proprietor of thepatent approves the amended wording of the Patent Authority. If the proprietor of the patent doesnot approve the amended wording, the patentsha ll be revoked.
(3) When a final decision has been made tomaintain a patent as amended, the proprietor ofthe patent shall pay the prescribed fee for publication of new patent specifications within theprescribed time limit. Failure to pay the fee intime shall cause the patent to be revoked .
(4) The Patent Authority shall advertise its decision on an adm inistrative re-examination.
Section 53 e"
(1) The patent holder himself may request thathis patent be restricted by amending the description, claims, or drawings on the conditions referred to in Section 53 b (2) and (6) .
(2) The Patent Authority shall then examinewhether the grounds referred to in section 52 (I)of this Act will prevent the patent from beingmaintained in the amended form desired by theproprietor of the patent. If the desired restrictioncan then be approved, the patent shall be amended accordingly, and section 53 d (3) and (4) ofthis Act shall apply mutatis mutandis, however,the patent shall be declared to have ceased tohave effect, if the fee for publication of new patent specifications is not paid in time.
(3) If, on the other hand, the patent cannot bemaintained in the desired restricted form, suchrequest for restriction shall be refused.
Section 53 f
If a patent is amended under sections 53 d or53 e of this Act, copies of the new patent specifications sith the amended description, drawings
15
and claims shall be available from the Patent Authority as from the date when this is advertisedunder section 53 d (4) of this Act.
Section 54
(1) If the proprietor of a patent surrenders thepatent to the Patent Authority the Patent Authority shall declare the patent to have ceased to haveeffect.
(2) If proceedings have been instituted for thetransfer ofpatent, the patent shall not be declaredto have ceased to have effect, until a final decision has been given in the proceedings.
Section 55
When a patent has lapsed or has been declaredto have ceased to have effect or has been revokedor transferred to another person by a final courtdecision, the Patent Authority shall publish a notice to that effect.
Section 55 a
If a patent is revoked wholly or partially, thepatent shall, to the extent that it has been revoked, be considered not to have had the effectsreferred to in section 3 of this Act already fromthe date of filing of the patent application. If apatent is restricted at the request ofthe proprietorof the patent, the amendment shall only take effect from the date when a notice to that effect isadvertised.
Part 8
Obligation to give information about patents
Section 56
(1) An application for a patent who invokes hispatent application against another person, beforethe files of the application have become available to the public, shall be under an obligation onrequest to consent to the said person getting access to inspect the files of the application. If theapplication comprises a deposited sample of biological material as referred to in section 8 a ofthis Act, the said person shall also have a right toobtain a sample. The provisions of section 22(6), 2nd and 3 ' d clause, (7) and (8) of this Act shallapply in those cases.
(2) Any person who, by direct communicationto another person or in advertisements or by in-
scription on goods or their packaging or in anyother way, indicates that a patent has been applied for or granted, without indicating at thesame time the number of the application or thepatent, shall be under an obligation to give suchinformation to any person requesting it withoutundue delay. If it is not explicitly indicated thata patent has been applied for or granted, but circumstances are such as to create that impression,information as to whether a patent has been applied for or granted shall be given on requestwithout undue delay.
Part 9
Liability to punishment. liability for damages.etc.
Section 576)
(1) Any person who intentionally infringes theexclusive right conferred by a patent (patent infringement) shall be liable to a fine. Under aggravating circumstances, including in particularif the purpose of the infringement is a significantand obviously unlawful profit, the penalty mayincrease to imprisonment of not more than oneyear.«
(2) Companies etc . (legal entities) may be heldcriminally liable according to Part V of the Danish Penal Code.
(3) Proceedings shall be brought by the injuredparty in case of infringement. Proceedings shall,however, be brought at the request of the injuredparty in case of infringements under subsectionI, 2nd clause, hereof by the public authorities.
Section 58
(1) Any person who intentionally or negligently commits patent infringement shall be liable topay a reasonable compensation for the exp loitation of the invention as well as damages for thefurther injury, which the infringement may havecaused.
(2) Ifany person commits patent infringementwhich is not intentional or due to negligence, heshall be liable to pay compensation and damagesunder the provisions of subsection I hereof, ifand to the extent this is found reasonable.
Section 59
(1) In the case of patent infringement the courtmay, to the extent this is found reasonable and
when so claimed, make decisions to prevent theabuse of products man ufactured in acco rdancewith the paten ted invention or of any apparatuses, tools or other articles the use of which wouldinvolve patent infringe ment. It may thus be decided that the article shall be altered in a specitied manner or destroyed or, in the case of a patented art icle, that it sha ll be surrendered to theinj ured party against compensation. this, however, shall not apply to any person who in goodfaith has acquired the said article or has acquiredrights in respect of the article, and who has nothimself comm itted patent infringement.
(2) Under very special circumstances, thecourt may, notwithstand ing the provisions insubsection I hereof and when so clai med, grantpermission to dispose free ly of the produ cts, apparatuses, tools and other articles referred to insubsection I hereof dur ing the term of the patentor part of that term aga inst a reasonable compensatio n and on reasonable conditions in other respects.
Section 60
(I) If any person exploits an inve ntion commercia lly without permission afte r the files ofthe applicatio n have been made available to thepublic, and the application result s in a patent, theprovisions concerning patent infringement, withthe exce ption of section 57 of this Act, shall apply mutatis mutandis. The protection conferredprior to grant of patent shall, however, only extend to subjec t-matter disclosed both in theclaims as worded at the time when the applic ation was made available to the publ ic and in thepatent as granted or maintained in amended formunder sec tion 23 (3) of this Act.
(2) The person concerned shall only be liableto the extend referred to in section 58 (2) of thisAct to pay damages for injury caused by infringement committed prior to the advertisementof the gran t of a patent under section 20 of thisAct.
(3) Claims for damages under subsectionhereof shall not be statute-barred earlier thanyear after the grant of the patent.
Sec tion 6 1
In proceedings for patent infringement the invalidity of the patent may only be put in issue ifa claim for revocation is set up aga inst the pro-
16
prietor of the patent, possibly after the latter hasbeen summoned under the rules laid down insection 63 (4) of this Act. If the patent is revoked, the provisions of sections 57 to 60 of thisAc t shall not apply.
Section 62
(I) Any person who, in the cases referred to insec tion 56 of this Act, fails to comply with hisobligations or give s false information shall bepunished by a fine , provided that a severer punishment is not provided for by other legislation,and shall be liable to compensate the injuryca used thereby to the extent this is found reasonable.
(2) The provi sions of section 57 (2) and (3) ofthis Act shall apply mutatis mutandis.
Section 63
(I) Any person who institutes proceedings forthe revocation of a patent, for the transfer of apatent or for the grant of a compulsory licenceshall at the same time notify the Patent Authorityaccordingly and by registered mail notify any licensee who is entered in the Regi ster of Patentsand whose address is recorded in that Register ofthe proceedings. Any person reque sting administrative re-examination of a patent shall at thesame time notify the said licensees to that effect.any licensee who wishe s to institute proceedingsfor patent infringement shall in a similar way notify the proprietor of the patent of the proceedings , provided that the latter's address is recorded in the Register.
(2) If the plaintiff, or the per son who has requested an administrative re-examination, doesnot prove on the day on which the case come s upfor trial or when a request for re-examination isfiled that notification under subsection I hereofhas been effected, the court or, in case of a request for re-examination, the Patent Authoritymay fix a time limit for compliance with the requirements of subsection I hereof. If the saidtime limit is not observed, the case shaH be dismissed.
(3) In proceedings for patent infringementbrought by the propri etor of the patent the defend ant shall notify the Patent Authority and registered licensees in accordance with the ruleslaid down in subsection I hereof, ifhe intends toclaim revocation of the patent. The provisions in
subsection 2 hereof shall apply, mutatismutandis so that the claim for revocation shall bedismissed, if the time limit which has been fixedis not observed.
(4) In proceedings for patent infringementbrought by a licensee, the defendant may summon the proprietor ofthe patent to attend withoutregard to his venue in order to claims against himthat the patent be revoked. The provisions of Part34 of the Administration of Justice Act shall apply mutatis mutandis.
Section 64
(1) The legal proceedings listed below shall bebrought in the High Court as the court of first instance :
(i) proceedings concerning the right to an invention which is the subject-matter of an application for a patent,
(ii) proceedings concerning the grant of a patent, cf. section 25 (3) of this Act.
(iii) proceedings for the revocation ofa patent orfor the transfer of a patent, cf. sections 52and 53 of this Act, and proceedings concerning rights under section 53 (2) of this Act,
(iv) proceedings concerning rights under sections 4 and 74 (2) of this Act,
(v) proceedings concerning patent infringement, and
(vi) proceedings for the assignment of a patentand proceedings concerning voluntary licences.
(2) Applicants and proprietors of patents whoare not residents of this country shall , in the proceedings brought under this Act, be deemed tohave their venue in Copenhagen.
Section 64 a
(I) If the subject-matter ofa patent is a proces sfor the manufacture of a new product , the sameproduct shall , when manufactured by any otherperson than the proprietor of the patent, bedeemed to be manufactured on the basis of thepatented process , unless evidence to the contraryis submitted.
(2) In connection with the submission of evidence to the contrary, the defendant's justifiedinterest in protecting his manufacturing andbusiness secrets shall be considered.
17
Section 65
Office copie s of court decisions in the casesreferred to in sections 50 and 64 (1) of this Actshall be communicated to the Patent Authorityon the initiative of the court.
Part 10
Miscellaneous provisions
Section 667)
The Patent and Trademark Office may invitethe patent holder to appoint an agent residing inthe European Economic Area (EEA) to receiveservices and other notifications as to the patenton his behalf. The name and address of the agentshall be entered in the Register of Patents.
Section 67
(I) Appeal s from the decisions of the PatentOffice under sections 44, 53 d, 53 e, 72 (1) and(2) , 73 and 96 of this Act may be filed by the applicant, the proprietor of the patent or the personwho has requested an administrative re-examination or the termination of the patent with thepatent Board of appeal not later than 2 monthsafter the date on which he was notified of the decision. Other parties interested in the said decision may file a similar appeal not later than 2months after the advertisement of the decision.
(2) The fee prescribed for the appeal shall bepaid within the time limit referred to in subsection 1 hereof. Failure to do so shall cause the appeal to be dismissed.
(3) The provisions in section 25 (2) to (4) shallapply mutatis mutandis.
Section 68
(I) The Minister for Business and Industryshall fix the amounts, etc . of the fees providedfor in this Act and of handling fees, etc.
(2) As far as renewal fees are concerned, theMinister for Business and Industry may directthat one or more of the first fee years shall be exempt from fees.
Section 69
(I) The Minister for Business and Industryshall lay down further provisions concerningpatent applications and their examination, con-
cerning the examination of oppositions, administrative re-examination , reestablishm ent, waiver of patents, concerning the arrangement andkeeping of the Register of Patents, con cernin gthe publication and contents of the Danish PatentGazette, concerning exchange of electronic datawith the Patent Authority and concerning theprocedures of the Patent Office. It may thus beprescribed that the records of the Patent Authority relating to applications filed shall be ava ilable to the publ ic. The Minister for Business andIndustry may lay down specific rules concerningthe days on which the Patent Office shall beclosed.
(3) The Minister for Business and Industrymay furthermore direct that, at the request of thePatent Authority and within a time limit fixed bythat Authority, any applicant who in any count ryhas filed a corresponding application for a patentshall furnish information about the result of theexamination as to the patentabilit y of the invention which has been communicated to him by thepatent auth ority of that country and transm it acopy of the correspondence with the said authority. However, no obligation to furnish inform ation may be prescribed in respect of any application referred to in Part 3 of this Act which hasbeen the subject of an internati onal preliminaryexamination on which a report has been filedwith the Patent Authority.
Section 70
For inve ntions relating to war material or processes for the manu facture of war materi el, secretpatents may be granted in acco rdance with thespecial provisions laid down to that effect.
Section 71
(1) The Patent Office may on requ est undertake the perform ance of special tasks in the nature of technological service.
(2) The Minister for Business and Industryshall lay down rules governing that service andthe payment therefor.
(3) Excep t for Section 4 (2) the Act on PublicAccess to Documents in Admini strative Filesshall not apply to the tasks mentioned in ( I) .
Sec tion 72
(I) If, apart from the cases referred to in subsection 2 hereof, the non-observance of a time
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limi t vis-a-vis the Patent Authority prescribed byor provided for in this Act causes a loss of right sto an applicant who has taken all due care reaso nably required , the Patent Authority shall onrequ est re-establi sh his rights. Th e request shallbe filed with the Patent Authority within 2months from the remov al of the obstacle causingnon-observance of the time limit though not laterthan I year after the expiry of the time limit. theomitted act shall be completed and the fee prescribed for the re-establishment of rights shall bepaid within the same time limit s.
(2) The provisions of subsection I hereof shallapply mutatis mutandis, if an applicant or a proprietor of a patent has not paid a renewal feewith in the time limit prescribed in section 41 (3)or section 42 (3) of this Act provided that the reque st for re-establi shment of rights is filed andthe renewal fee is paid not later than 6 months after the expiry of the time limit.
(3) The provision s of subsection I hereof shallnot apply to the time limit referr ed to in section6 ( I) of this Act.
Section 73
(1) If, in the cases referred to in sec tion 31 ofthis Act, the applicant has availed himself ofmail ing, and the mail is not received in due time ,but the act is completed within 2 months after thedate on which the applicant noti ced or shouldhave noticed that the time limit was exceededand not later than I year after expiry of the timelimit, the Patent Authority shall re-establi sh therights, provided that(i) within 10 days preceding the expiry of the
time limit the postal serv ice was interruptedon acco unt of war, revolution, civil disorder,strike, natural calamity or other like reasonin the locality where the sender is stay ing orhas his place of business, and the mailin g tothe Patent Authority is effe cted within 5days after the resumption of the postal serv ice, or
(ii) the mail ing was effected by registered mailto the Patent Authority not later than 5 daysprior to the expiry of the time limit thoughonly if the mailing was effected by airmail,where possible, or if the sender had eve ryreason to believe that surface mail would notarrive later than 2 days after the date of mailing.
(2) If the applicant wishes to have his rights re-
establ ished under subsec tion I hereof, he shallfile a requ est to that effect wi th the Patent Author ity before expiry of the time limit referred to.
Sec tion 74
(1) Wh en a requ est under sections 72 or 73 ofthis Act has been accepted and, in consequence ,a patent appli cation wh ich has been shelved orrefused after having been made ava ilable to thepubl ic shall be furt her processed, or a lapsed patent shall be rega rded as maintained, a notice tothat effect shall be publ ished.
(2) Any person who, afte r expiry o f the timelimit laid down for the resumption of proceedings in respect of a shelve d applicat ion or afterrefusal of the application or after adve rtisementof the lapse of the patent , but prior to the publi cation of the notice under subsec tion I hereof, ingoo d faith has co mmence d a commercia l exploitation of the inventi on in this country or madesubstantia l preparations for such ex ploitation,may con tinue the exploitation reta ining its ge neral character.
(3) Th e right provided for in subsec tion 2 hereof shall only be transferred to others togetherwith the business in which it has arisen or inwhich the exploitation was intend ed.
Sec tion 74 a
If the Mini ster for Business and Indust ry transfers his authority under this Act to the Patent Office, the Min ister may lay down rules co ncern ingthe right of appea l inc luding rules to the effectthat appea ls may not be brought before any higher administrative autho rity.
Part 10 A
Europea n patents
Section 75
(1) A "E uropea n patent" is a pate nt that hasbeen granted by the European Paten t Office pursuant to the European Patent Conve ntio n done atMunich on 5 October 1973. A Europea n patentapplication is an applica tion filed in accordancewith that Co nvention.
(2) European patent s may be granted for Denmark .
(3) An application for a European patent shall
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be filed with the Europea n Patent Office, cf.However, the pro visions laid down in sec tion 70o f this Act for sec ret patent s. An applica tion fora European patent may also be filed with the Patent Authority of thi s country which shall forwardthe application to the European Patent Office.Th e appli cations referr ed to in Article 76 of theCo nve ntion sha ll onl y be filed with the Europea nPatent Office .
(4) The Provision s of sec tions 76 to 90 of th isAc t shall apply to Europea n paten ts for Denm arkand to Euro pean patent app lica tions designatin gDenm ark.
Sec tion 76
A Europea n patent sha ll be conside red grantedwhen the European Patent Offi ce has publi shedits decision to that effect. A European patentsha ll have the same effect as a patent gra nted bythe Patent Authority o f this country and shall besubject to the same provisions as such a patentun less otherwise prov ided for in sec tions 77 to90 of this Act.
Sec tion 77
(1) A Europea n patent sha ll only have effec t inthi s co untry provided that the applicant withinthe prescribed tim e limit files with the PatentAuthority of this country a Dan ish translation ofthe tex t in which the patent , according to thecomm unicat ion by the European Patent office tothe applicant, is intended to be gra nted, and theapplicant within the same time limi t pays theprescribed publicat ion fee. If the Europea n Patent Office decides to maint ain a Europea n patentin amended form , this shall also apply to theamended form .
(2) Th e trans lation shall be ava ilable to thepubli c. The translat ion shall, however, not beavai lable to the public, until the Europea n patentapplication has been published by the EuropeanPatent office,
(3) Whe n the trans lat ion has been filed and thefee paid , and the Euro pea n Patent Office haspublished its dec ision to let the patent application proceed to grant or to main tain the Europea npatent as amended, the Patent Authority of th isco untry sha ll publish a notice to that effec t. Co pies of the translat ion shall be obtainable from thePatent Authority without delay.
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Section 78
(1) The provisions of section 72 (I) of this Actshall also apply to the filing of the translationand payment of the fee pursuant to section (I) ofthis Act.
(2) Ifit is decided pursuant to section 72 of thisAct that the tiling of the translation and paymentof the fee in compliance with section 77 (I) ofthis Act are to be considered duly made, the Patent Authority of this country shall publish a notice to that effect.
(3) Any person who, after expiry of the timelimit laid down in section 77 (I) of this Act, butprior to the publication of the notice prescribedin subsection 2 hereof, in good faith has commenced a commercial exploitation of the invention in this country or made substantial preparations for such exploitation shall have the rightsprovided for in section 74 (2) and (3) of this Act.
Section 79
The provision of section 52 (I) (iv) of this Actshall apply to European patents provided that extension has taken place after the patent has beengranted.
Section 80
If the European Patent Office revokes a European patent wholly or partially, it shall have theeffect as had the patent been revoked to the sameextent in this country. The Patent Authority ofthis country shall publish a notice to that effect.
Section 81
(1) For a European patent a renewal fee shallbe paid to the Patent Authority of this country foreach fee year following the year in which the European Patent Office has published its decisionto let the patent application proceed to grant.
(2) If the renewal fee for the European patentis not paid pursuant to subsection I hereof, cf.Section 41 of this Act, section 51 of this Actshall apply mutatis mutandis. With regard to thefirst renewal fee, it shall not fall due until 3months after the date on which the patent isgranted.
Section 82
(1) A European patent application for whichthe European Patent Office has fixed a filing date
shall from that date have the same effect in thiscountry as an application filed in this country. Ifthe application claims priority pursuant to theEuropean Patent Convention from an earlier datethan the filing date, such priority shall also applyin this country.
(2) A European patent application shall bedeemed to have been covered by Section 2 (2),second clause when the designation fee for Denmark has been paid under Article 79 (2) of theEuropean Patent Convention. The same shall apply to publication under Article 158 (I) of theConvention provided that such publication bythe European Patent Office is considered equivalent to publication under Article 93 .
Section 83
(1) When a European patent application hasbeen published in accordance with the EuropeanPatent Convention and the applicant has filed atranslation ofclaims of the published applicationin Danish with the Patent Authority of this country, the Patent Authority of this country shallmake the translation available to the public andpublish a notice to that effect.
(2) Ifany person without permission commercially exploits an invention which is the subjectmatter of a European patent application after thepublication of a notice pursuant to subsection Ihereof and the application results in a patent forDenmark, the provisions concerning patent infringement shall apply. In such cases the patentprotection shall, however, not apply and likewise the person concerned shall only be liablefor damages to the extent referred to in section58 (2) of this Act.
(3) Claims for damages under subsection 2hereof shall not be statue-baffed earlier than Iyear after the time limit for oppositions againstthe European patent has expired or after the European Patent Office has decided to maintain thepatent.
Section 84
(1) If a European patent application or the designation of Denmark is withdrawn or the application or designation is deemed to be withdrawnin accordance with the European Patent Convention and the processing of the application is notresumed pursuant to Article 121 of the Convention, this shall have the same effect as the with-
drawal of an appli cation before the Patent Authority of this country.
(2) If a Europ ean patent application is refused,it shall have the same effect as if the applicationhad been refused by the Patent Authority of thiscountry.
Section 85
(1) If the translations referred to in sec tions 77and 83 of this Act do not comply with the text inthe language of the proceedings before the European Patent Offi ce, the patent protection sha llonly extend to subject-matter disclosed in bothtexts.
(2) In revocation proceedings only the text inthe language of the proceedings shall apply.
Section 86
(1) If the applicant or the propri etor of the patent files with the Patent Authority of this countrya correction to the tran slation referred to in section 77 of this Act , and if he pays the prescrib edpublication fee, the corrected transl ation shall replace the previous tran slation . The correctiontranslation shall be available to the public provided that the original translation is available tothe public. When such correction has been filed,and the fee has been duly paid , the Patent Authority of this country shall publi sh a noti ce concerning the corre ction provided that the originaltranslation shall be obtainable from the PatentAuthority of this country without delay.
(2) If the applicant files a correction to thetranslation referred to in section 83 of this Act,the Patent Authority of this country shall publ isha notic e to that effect and shall make the correc ted tran slation available to the public . When thenotice has been published, the corrected tran slation shall replace the original tran slation.
(3) Any person who , at the time the correc tedtransl ation took effect, in good faith commercially exploited the inve ntion in this country insuch a matt er that acc ording to the previou stranslation it did not infrin ge the right s of the applicant or the proprietor of the patent, or hadmade substantial preparations for such exploitation, shall have the right s provided for in sec tion74 (2) and (3) of this Act.
Sec tion 87
(1) If the European Patent Offi ce re-establ ish-
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es the right s for a patent applicant or a proprietorofa patent who has failed to observe a time limit,such decision shall also apply in this country.
(2) Any person who , after loss of right s has occurred, but prior to the re-establi shment of therights and publ icat ion ofa notice to that effect bythe European Patent Offi ce, in good faith commenced comm ercial exploitation of the invention in this country, or has made substantia lpreparation s for such exploitation, shall have therights provided for in section 74 (2) and (3) ofthis Act.
Section 88
(1) If an application for a European patentfiled with a national patent authority is deemedto be withdrawn due to the fact that the EuropeanPatent Offi ce did not receive the applicationwithin the prescribed time limit, the Patent Authority shall at the request of the applicant regardthe application as con verted into an applicationfor a patent in this country, provided that(i) the reque st is filed with the national authori
ty which received the application within 3months after the applicant has been notifiedthat the application is deemed to be withdrawn ,
(ii) the reque st is filed with the Patent Authorityof this country within 20 months after the filing date of the application or , if priority hasbeen claimed , after the priority date, and
(iii) the applicant within a time limit to be fixedby the Mini ster for Business and Industrypays the prescribed appli cation fee and filesa translation of the applicat ion in Danish.
(2) Provided that the patent applicat ion complie s with the requirements of the European Patent Convention with regard to form , the application shall be accepted in that respect.
Sec tion 89
The provisions of Articles 9, 60, 126 and 13 1of the European Patent Convention and the Protocol on Jurisd ict ion and the Recognition of Decisions in respect of the Right to the Grant of aEuropean Patent (Protocol on Recognition) annexed to the Convention shall apply in this country .
Sec tion 89 a
The provisions of this Act regarding deposit of
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biological material shall not apply to Europeanpatents.
Section 90
The Minister for Business and Industry shalllay down further rules for the implementat ion ofthe European Patent Convention and the implementation of the provisions of this Part of theAct.
Part 10 B
Supplementary Protection Certificates
Section 9 1
(1) The Minister of Business and Industry maylay out rules which are necessary for the application in this Country of the European Co mmunity' s regulations concerni ng the implementatio nof supplementary protection certificates.
(2) The Minister for Business and Industryshall fix the amounts, etc., of fees for f ling of anapplication for a cert ifica te, for resumption ofthe examination and further processing ofan application, for re-establishm ent of rights, for administrat ive re-examination, for the bringing ofappeals before the Patent Board of Appea l andfor the individual fee years.
(3) Sectio n 57 of this Order concern ing criminall iabili ty for patent vio lation similarly appliesto vio lation of the exc lusive right which is a consequence of a protection certificate as dealt within subsection I.
(4) The Minister for Business and Industrymay succeeding negotiations with the Faroe Islands and Greenland's home Rule lay down provisions on the regulations mentioned in subsection I concerning certificates to be applicab le onthe Faroe Islands and Greenland.
Pa r t 10 c
Community patents, etc.
Section 92
(1) A "Community patent" is a patent that hasbeen granted by the Europea n Patent Office according to a European patent app lication, cf.Section 75 ( I) of this Act pursuant to the Commun ity Patent Convention laid dow n in the
Agreement relating to Community Patent s, doneat Luxembourg on 15 Decemb er 1989.
(2) Community patent s may be granted forDenmark.
Section 93
(1) The provisions in the Agreement relatingto Community Patents shall in this country applyto Community patents and applications for suchpatents.
(2) The Min ister for Business and Industryshall adve rtise the provisions laid down by theindivid ual countries pursuant to Article 83 in theCo mmu nity Patent Convention.
Section 94
Sec tions 75 (3), 80, 82, 84, 87 and 88 of thisAc t shall app ly mutatis mutandis to Communitypatents and to applicatio ns for such patents.
Section 95
Rights under Article 32 ( I) of the CommunityPatent Convention shall on ly be accorded to applicants for Com munity paten ts who have eitherforwa rded a Danish translation of the claimswhich have been adve rtised to the Patent Authority, or who have forwarded such translationto the person exploiting the invention in thiscountry.
Section 96
(1) If a patent gra nted by the Patent Authorityconcerns an invention for which a Com munitypatent or a Euro pean patent for Denmark hasbeen issued to the same inventor or to his successor in title, with the same date of application or,if priority has been claimed, with the same dateof priority, the patent granted in this country under Article 75 ( I) and (2) of the Community Patent Convention according to the decision of thePatent Authority or by court decision shall beterminated, wholly or part ially, provided that arequest is made or proceed ings are instituted tothat effect.
(2) Any perso n may request a decision by thePatent Authority or institute proceedings for terminatio n, wholly or partially, of a patent undersubsec tion I hereof. Sections 53 a to f, 55, 55 a,63, 64 and 65 of this Act shall apply mutatis
mutandis. The request shall be acco mpanied bythe prescr ibed fee.
(3) Proceedings instituted concerning term ination while a request in this respect has not beenfinally exa mined by the Patent Authority, maybe suspended by the court until a fina l decisionhas been made by the Patent Authority.
Section 97
The Mini ster for Business and Industry shalllay down further rules for the implementation ofthe? provisions of this Part of the Act.
Part 11
Provisions as to entry intoforce and transitionalprovision
(1) This Act shall enter into force on I January
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1968. At the same time, The Patents Act, cf.Conso lidate Act No. 36 1 of 19 December 1958sha ll be repealed. Furthermore, section 4 of theDan ish Employee's Invent ions Act No . 142 of29 April 1955 shall be repealed.
(2) Patents for inventions of food products andmedici nal products and patent s for processes forthe manu facture of food productssupersc ript shall, however, not be granted untilafte r a date to be fixed by the Minister for Business and Industry .
2. A patent whic h has been granted or will begranted under previous legislation shall only berevoked in acco rdance with the provisions ofsec tion 24 of the previous Patents Act.
The Ministry ofBusiness and ln dustry. I t) August 2001
OLE ST A VAD
/ Moge ns Kring
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This Consolida te Patent s Act contains comme nts on entry into force and transitional provi sion s adopt ed durin g the 19992000 and 2000 -200 I sittings of the Folketin g. Provisions as to entry into force and transitional pro vision s conce rn ing earlier ado pted amendm ent s o f the PatentsAct are to be found i The Conso lidate Patents Act No. 926 of22 September 2000 .The amendments in consequence of act on amendment o f the Patent s Act and the Trade Mark s Act no. 1258 of 20 December 2000 menti oned below do not apply to The Faeroes and Greenland. Th ey ma y, however, come into force by RoyalDecree for these parts of the country with the deviancies dictated by the specific Faeroese and Green land conditi ons.§ 12 in the wording here stated entere d into force on I January 200 I, cf. Act no. 1258 01'20 December 2000.§ 53 a in the wordi ng here stated entered into force on I Janu ary 200 1, cf. Act no. 1258 of20 December 2000 .§ 53 b in the wording here stated entered into force on I January 200 I, cf. Act no. 1258 of 20 December 2000 .Requestsfor re-exam ination o f a patent handed in before 1 Janua ry 200 I will be treated according to the rule s hitherto in force .§ 53 e in the wording here stated entered into force on I Janu ary 2001, cf. Act no. 1258 of20 December 2000 .§ 57 in the wording here stated entered into force on 1 Janu ary 200 1, cf. Act no. 1258 of 20 December 2000.§ 66 in the word ing here stated entered into force on 1 Janu ary 2001 , cf. Act no. 1258 of20 Decemb er 2000.