sou · GRB366d2 · 2004-01-01 00:00:00 — Utredaren skall också lämna förslag till de ytterligare lagändringar som kan behövas till följd av eventuella ändringar av PCT och dess tillämpningsföreskrifter . Därutöver skall utredaren överväga några andra immaterial- rättsliga frågor som aktualiserats bl.a. genom framställningar till och som i vissa fall också har samband med någon av konventionerna. Dessa frågor är om det finns anledning att införa särskilda regler om skydd för tystnadsplikt, inklusive skydd mot edition av skriftliga handlingar, för patentombud och för bolagsjurister som sysslar med immaterialrättslig rådgivning, om det bör införas en särskild avgift för en tredje man som gör invändning mot ett patent som meddelas av , om de svenska reglerna om s.k. löpdags- förskjutning i 14 § patentlagen bör upphävas eller ändras, samt om det bör ske en utvidgning av regeln i 77 § första stycket patentlagen så att den uttryckligen medger delegation av normgivning i fråga om invändningsärenden och ärenden om tilläggsskydd. I före- kommande fall skall utredaren även lämna förslag till bestämmelser rörande dessa frågor. Utredaren skall samråda med berörda departement och ut- redningar i de andra nordiska länderna. En fortsatt nordisk rätts- likhet inom patenträtten skall eftersträvas i den utsträckning som är lämplig och möjlig. Uppdraget skall vara slutfört . Utredaren skall, vad gäller redovisning av förslagens kon- sekvenser för små företag, samråda med för Regelgranskning. European Patent Convention (EPC 2000) – i lydelse enligt förvaltningsrådets beslut ; CA/D 18/01 GENERAL AND INSTITUTIONAL PROVISIONS European law for the grant of patents A system of law, common to the Contracting States, for the grant of patents for invention is established by this Convention. (1)Patents granted under this Convention shall be called European patents. (2)patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides otherwise. The grant of a European patent may be requested for one or more of the Contracting States. (1) A , hereinafter referred to as the Organisation, is established by this Convention. It shall have administrative and financial autonomy. (2)The organs of the Organisation shall (a) Patent Office; (b) the . (3)The task of the Organisation shall be to grant European patents. This shall be carried out by Patent Office supervised by the . Conference of ministers of the Contracting States A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to patent system. (1)shall have legal personality. (2)In each of the Contracting States, the Organisation shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State; it may in particular acquire or dispose of movable and immovable property and may be a party to legal proceedings. (3)The President of Patent Office shall represent the (1)shall have its headquarters in . (2)Patent Office shall be located in . It shall have a branch at The Hague. Sub-offices of Patent Office By decision of the , sub-offices of Patent Office may be created, if need be, for the purpose of information and liaison, in the Contracting States and with inter- governmental organisations in the field of industrial property, subject to the approval of the or organisation concerned. The Protocol on Privileges and Immunities annexed to this Convention shall define the conditions under which the Organisation, the members of the , the employees of Patent Office, and such other persons specified in that Protocol as take part in the work of the Organisation, shall enjoy, in each , the privileges and immunities necessary for the performance of their duties. (1)The contractual liability of the Organisation shall be governed by the law applicable to the contract in question. (2)The non-contractual liability of the Organisation in respect of any damage caused by it or by the employees of Patent Office in the performance of their duties shall be governed by the law of the Federal Republic of . Where the damage is caused by the branch at The Hague or a sub-office or employees attached thereto, the law of the in which such branch or sub-office is located shall apply. (3)The personal liability of the employees of Patent Office towards the Organisation shall be governed by their Service Regulations or conditions of employment. (4)The courts with jurisdiction to settle disputes under paragraphs 1 and 2 shall be: (a)for disputes under paragraph 1, the courts of the Federal Republic of , unless the contract concluded between the parties designates a court of another State; (b)for disputes under paragraph 2, the courts of the Federal Republic of , or of the State in which the branch or sub-office is located. (1)Patent Office shall be managed by the President, who shall be responsible for its activities to the . (2)To this end, the President shall have in particular the following functions and powers: (a) he shall take all necessary steps to ensure the functioning of Patent Office, including the adoption of internal administrative instructions and information to the public; (b)unless this Convention provides otherwise, he shall prescribe which acts are to be performed at Patent Office in and its branch at The Hague respectively; (c)he may submit to the any proposal for amending this Convention, for general regulations, or for decisions which come within the competence of the ; (d)he shall prepare and implement the budget and any amending or supplementary budget; (e)he shall submit a management report to the each year; (f)he shall exercise supervisory authority over the staff; (g)subject to Article 11, he shall appoint the employees and decide on their promotion; (h)he shall exercise disciplinary authority over the employees other than those referred to in Article 11, and may propose disciplinary action to the with regard to employees referred to in Article 11, paragraphs 2 and 3; (i)he may delegate his functions and powers. (3) The President shall be assisted by a number of Vice-Presidents. If the President is absent or indisposed, one of the Vice-Presidents shall take his place in accordance with the procedure laid down by the . Appointment of senior employees (1)The President of Patent Office shall be appointed by the . (2)The Vice-Presidents shall be appointed by the after the President of Patent Office has been consulted. (3)The members, including the Chairmen, of the Boards of Appeal and of shall be appointed by proposal from the President of Patent Office. They may be re- appointed by the after the President of Patent Office has been consulted. (4)shall exercise disciplinary authority over the employees referred to in paragraphs 1 to 3. (5), after consulting the President of Patent Office, may also appoint as members of legally qualified members of the national courts or quasi-judicial authorities of the Contracting States, who may continue their judicial activities at the national level. They shall be appointed for a term of three years and may be re- appointed. Employees of Patent Office shall be bound, even after the termination of their employment, neither to disclose nor to make use of information which by its nature is a professional secret. Disputes between the Organisation and the employees of Patent Office (1) Employees and former employees of Patent Office or their successors in title may apply to the Administrative Tribunal of the in the case of disputes with , in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees. (2) An appeal shall only be admissible if the person concerned has exhausted such other means of appeal as are available to him under the Service Regulations, the Pension Scheme Regulations or the conditions of employment. Languages of Patent Office, European patent applications and other documents (1)The official languages of Patent Office shall be English, French and German. (2)A European patent application shall be filed in one of the official languages or, if filed in any other language, translated into one of the official languages in accordance with the Implementing Regulations. Throughout the proceedings before Patent Office, such translation may be brought into conformity with the application as filed. If a required translation is not filed in due time, the application shall be deemed to be withdrawn. (3)The official language of Patent Office in which patent application is filed or into which it is translated shall be used as the language of the proceedings in all proceedings before Patent Office, unless the Implementing Regulations provide otherwise. (4)Natural or legal persons having their or principal place of business within a having a language other than English, French or German as an official language, and nationals of that State who are resident abroad, may file documents which have to be filed within a time limit in an official language of that State. They shall, however, file a translation in an official language of Patent Office in accordance with the Implementing Regulations. If any document, other than those documents making up patent application, is not filed in the prescribed language, or if any required translation is not filed in due time, the document shall be deemed not to have been filed. (5)European patent applications shall be published in the language of the proceedings. (6)Specifications of European patents shall be published in the language of the proceedings and shall include a translation of the claims in the other two official languages of Patent Office. (7)The following shall be published in the three official languages of Patent Office: (a)Patent Bulletin; (b)the . (8) Entries in Patent Register shall be made in the three official languages of Patent Office. In cases of doubt, the entry in the language of the proceedings shall be authentic. Departments entrusted with the procedure To carry out the procedures laid down in this Convention, the following shall be set up within Patent Office: (a) a Receiving Section; (c)Search Divisions; (d)Examining Divisions; (e)Opposition Divisions; (f)a Legal Division; (g)Boards of Appeal; (h)an . The Receiving Section shall be responsible for the examination on filing and the examination as to formal requirements of European patent applications. The Search Divisions shall be responsible for drawing up European search reports. (1)The Examining Divisions shall be responsible for the examination of European patent applications. (2)An Examining Division shall consist of three technically qualified examiners. However, before a decision is taken on a European patent application, its examination shall, as a general rule, be entrusted to one member of the Examining Division. Oral proceedings shall be before the Examining Division itself. If the Examining Division considers that the nature of the decision so requires, it shall be enlarged by the addition of a legally qualified examiner. In the event of parity of votes, the vote of the Chairman of the Examining Division shall be decisive. (1)The Opposition Divisions shall be responsible for the examination of oppositions against any European patent. (2)An Opposition Division shall consist of three technically qualified examiners, at least two of whom shall not have taken part in the proceedings for grant of the patent to which the opposition relates. An examiner who has taken part in the proceedings for the grant of patent may not be the Chairman. Before a decision is taken on the opposition, the Opposition Division may entrust the examination of the opposition to one of its members. Oral proceedings shall be before the Opposition Division itself. If the Opposition Division considers that the nature of the decision so requires, it shall be enlarged by the addition of a legally qualified examiner who shall not have taken part in the proceedings for grant of the patent. In the event of parity of votes, the vote of the Chairman of the Opposition Division shall be decisive. (1)The Legal Division shall be responsible for decisions in respect of entries in the and in respect of registration on, and deletion from, the list of professional representatives. (2)Decisions of the Legal Division shall be taken by one legally qualified member. (1)shall be responsible for the examination of appeals from decisions of the Receiving Section, the Examining Divisions and Opposition Divisions, and the Legal Division. (2)For appeals from decisions of the Receiving Section or the Legal Division, a shall consist of three legally qualified members. (3)For appeals from a decision of an Examining Division, a shall consist of: (a)two technically qualified members and one legally qualified member, when the decision concerns the refusal of a European patent application or the grant, limitation or revocation of a European patent, and was taken by an Examining Division consisting of less than four members; (b)three technically and two legally qualified members, when the decision was taken by an Examining Division consisting of four members, or when considers that the nature of the appeal so requires; (c)three legally qualified members in all other cases. (4) For appeals from a decision of an Opposition Division, a shall consist of: (a)two technically qualified members and one legally qualified member, when the decision was taken by an Opposition Division consisting of three members; (b)three technically and two legally qualified members, when the decision was taken by an Opposition Division consisting of four members, or when considers that the nature of the appeal so requires. (1) shall be responsible for: (a)deciding on points of law referred to it by Boards of Appeal under Article 112; (b)giving opinions on points of law referred to it by the President of Patent Office under Article 112; (c)deciding on petitions for review of decisions of the Boards of Appeal under Article 112a. (2) In proceedings under paragraph 1(a) and (b), shall consist of five legally and two technically qualified members. In proceedings under paragraph 1(c), shall consist of three or five members as laid down in the Implementing Regulations. In all proceedings, a legally qualified member shall be the Chairman. Independence of the members of the Boards (1)The members of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the , on a proposal from , takes a decision to this effect. Notwithstanding sentence 1, the term of office of members of the Boards shall end if they resign or are retired in accordance with the Service Regulations for permanent employees of Patent Office. (2)The members of the Boards may not be members of the Receiving Section, Examining Divisions, Opposition Divisions or Legal Division. (3)In their decisions the members of the Boards shall not be bound by any instructions and shall comply only with the provisions of this Convention. (4)The Rules of Procedure of the Boards of Appeal and shall be adopted in accordance with the Implementing Regulations. They shall be subject to the approval of the . (1)Members of the Boards of Appeal or of may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal. (2)If, for one of the reasons mentioned in paragraph 1, or for any other reason, a member of a or of considers that he should not take part in any appeal, he shall inform the Board accordingly. (3)Members of a or of may be objected to by any party for one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. An objection may not be based upon the nationality of members. (4)and shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3, without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate. At the request of the competent national court hearing an infringement or revocation action, Patent Office shall be obliged, on payment of an appropriate fee, to give a technical opinion concerning patent which is the subject of the action. The Examining Division shall be responsible for issuing such opinions. (1)shall be composed of the Representatives and the alternate Representatives of the Contracting States. Each be entitled to appoint one Representative and one alternate Representative to the . (2)The members of the may, in accordance with the Rules of Procedure of the , be assisted by advisers or experts. (1)shall elect a Chairman and a Deputy Chairman from among the Representatives and alternate Representatives of the Contracting States. The Deputy Chairman shall ex officio replace the Chairman if he is prevented from carrying out his duties. (2)The terms of office of the Chairman and the Deputy Chairman shall be three years. They may be re-elected. (1)When there are at least eight Contracting States, the may set up a Board composed of five of its members. (2)The Chairman and the Deputy Chairman of the shall be members of the Board ex officio; the other three members shall be elected by the . (3)The term of office of the members elected by the shall be three years. They may not be re- elected. (4)shall perform the duties assigned to it by the in accordance with the Rules of Procedure. (1)Meetings of the shall be convened by its Chairman. (2)The President of Patent Office shall take part in the deliberations of the . (3)shall hold an ordinary meeting once each year. In addition, it shall meet on the initiative of its Chairman or at the request of one-third of the Contracting States. (4)The deliberations of the shall be based on an agenda, and shall be held in accordance with its Rules of Procedure. (5)The provisional agenda shall contain any question whose inclusion is requested by any in accordance with the Rules of Procedure. (1)shall be represented at the meetings of the , in accordance with an agreement between the Organisation and the . (2)Other intergovernmental organisations entrusted with carrying out international procedures in the field of patents, with which the Organisation has concluded an agreement, shall be represented at the meetings of the , in accordance with such agreement. (3)other intergovernmental and international non-governmental organisations carrying out an activity of interest to the Organisation may be invited by the to be represented at its meetings during any discussion of matters of mutual interest. (1)The languages used in the deliberations of the shall be English, French and German. (2)Documents submitted to the , and the minutes of its deliberations, shall be drawn up in the three languages specified in paragraph 1. Staff, premises and equipment Patent Office shall place at the disposal of the , and of any committee established by it, such staff, premises and equipment as may be necessary for the performance of their duties. Competence of the in certain cases (1) shall be competent to amend: (a) the time limits laid down in this Convention; (b) Parts II to VIII and Part X of this Convention, to bring them into line with an international treaty relating to patents or European Community legislation relating to patents; (c) the Implementing Regulations. (2) shall be competent, in conformity with this Convention, to adopt or amend: (a)the Financial Regulations; (b)the Service Regulations for permanent employees and the conditions of employment of other employees of Patent Office, the salary scales of the said permanent and other employees, and also the nature of any supplementary benefits and the rules for granting them; (c)the Pension Scheme Regulations and any appropriate increases in existing pensions to correspond to increases in salaries; (d)the Rules relating to Fees; (e)its Rules of Procedure. (3)Notwithstanding Article 18, paragraph 2, the shall be competent to decide, in the light of experience, that in certain categories of cases Examining Divisions shall consist of one technically qualified examiner only. Such decision may be rescinded. (4)shall be competent to authorise the President of Patent Office to negotiate and, subject to its approval, to conclude agreements on behalf of with States, with intergovernmental organisations and with documentation centres set up on the basis of agreements with such organisations. (5)may not take a decision under paragraph 1(b): – concerning an international treaty, before its entry into force; – concerning European Community legislation, before its entry into force or, where that legislation lays down a period for its implementation, before the expiry of that period. (1)The right to vote in the shall be restricted to the Contracting States. (2)Each have one vote, except where Article 36 applies. (1)shall take its decisions, other than those referred to in paragraphs 2 and 3, by a simple majority of the Contracting States represented and voting. (2)A majority of three quarters of the votes of the Contracting States represented and voting shall be required for the decisions which the is empowered to take under Article 7, Article 11, paragraph 1, Article 33, paragraphs 1(a) and (c), and 2 to 4, Article 39, paragraph 1, Article 40, paragraphs 2 and 4, Article 46, Article 134a, Article 149a, paragraph 2, Article 152, Article 153, paragraph 7, Article 166 and Article 172. (3)Unanimity of the Contracting States voting shall be required for the decisions which the is empowered to take under Article 33, paragraph 1(b). shall take such decisions only if all the Contracting States are represented. A decision taken on the basis of Article 33, paragraph 1(b), shall not take effect if a declares, within twelve months of the date of the decision, that it does not wish to be bound by that decision. (4) Abstentions shall not be considered as votes. (1) In respect of the adoption or amendment of the Rules relating to Fees and, if the financial contribution to be made by the Contracting States would thereby be increased, the adoption of the budget of the Organisation and of any amending or supplementary budget, any may require, following a first ballot in which each have one vote, and whatever the result of this ballot, that a second ballot be taken immediately, in which votes shall be given to the States in accordance with The decision shall be determined by the result of this second ballot. (2) The number of votes that each have in the second ballot shall be calculated as follows: (a)the percentage obtained for each in respect of the scale for the special financial contributions, pursuant to Article 40, paragraphs 3 and 4, shall be multiplied by the number of Contracting States and divided by five; (b)the number of votes thus given shall be rounded upwards to the next whole number; (c)five additional votes shall be added to this number; (d)nevertheless, no have more than 30 votes. The budget of the Organisation shall be financed: (a)by the Organisation's own resources; (b)by payments made by the Contracting States in respect of renewal fees for European patents levied in these States; (c)where necessary, by special financial contributions made by the Contracting States, (d)where appropriate, by the revenue provided for in Article 146;