sou · GRB366d2 · 2004-01-01 00:00:00 — (2) Paragraph 1 shall not preclude the application of legislative or regulatory provisions which, in any Contracting State: (a)govern inventions which, owing to the nature of their subject-matter, may not be communicated abroad without the prior authorisation of the competent authorities of that State, or (b)prescribe that any application is to be filed initially with a national authority, or make direct filing with another authority subject to prior authorisation. (1)A European divisional application shall be filed directly with Patent Office in accordance with the Implementing Regulations. It may be filed only in respect of subject-matter which does not extend beyond the content of the earlier application as filed; in so far as this requirement is complied with, the divisional application shall be deemed to have been filed on the date of filing of the earlier application and shall enjoy any right of priority. (2)All the Contracting States designated in the earlier application at the time of filing of a European divisional application shall be deemed to be designated in the divisional application. Forwarding of European patent applications (1)The central industrial property office of a forward to Patent Office any European patent application filed with it or any other competent authority in that State, in accordance with the Implementing Regulations. (2)A European patent application the subject of which has been made secret shall not be forwarded to Patent Office. (3)A European patent application not forwarded to Patent Office in due time shall be deemed to be withdrawn. Requirements of a European patent application A European patent application shall contain: (a)a request for the grant of a European patent; (b)a description of the invention; (c)one or more claims; (d)any drawings referred to in the description or the claims; (e)an abstract, and satisfy the requirements laid down in the Implementing Regulations. (2) A European patent application shall be subject to the payment of the filing fee and the search fee. If the filing fee or the search fee is not paid in due time, the application shall be deemed to be withdrawn. Designation of Contracting States (1)All the Contracting States party to this Convention at the time of filing of patent application shall be deemed to be designated in the request for grant of a European patent. (2)The designation of a may be subject to the payment of a designation fee. (3)The designation of a may be withdrawn at any time up to the grant of patent. The date of filing of a European patent application shall be the date on which the requirements laid down in the Implementing Regulations are fulfilled. Designation of the inventor patent application shall designate the inventor. If the applicant is not the inventor or is not the sole inventor, the designation shall contain a statement indicating the origin of the right to patent. patent application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept. Disclosure of the invention patent application shall disclose the invention in a sufficiently clear and complete for it to be carried out by a person skilled in the art. The claims shall define the matter for which protection is sought. They shall be clear and concise and be supported by the description. The abstract shall serve the purpose of technical information only; it may not be taken into account for any other purpose, in particular for interpreting the scope of the protection sought or applying Article 54, paragraph 3. Renewal fees for patent application (1)Renewal fees for patent application shall be paid to Patent Office in accordance with the Implementing Regulations. These fees shall be due in respect of the third year and each subsequent year, calculated from the date of filing of the application. If a renewal fee is not paid in due time, the application shall be deemed to be withdrawn. (2)The obligation to pay renewal fees shall terminate with the payment of the renewal fee due in respect of the year in which the mention of the grant of patent is published in Patent Bulletin. (1) person who has duly filed, in or for (a)any State party to the Convention for the Protection of Industrial Property or (b)any Member of the , an application for a patent, a utility model or a utility certificate, or his successor in title, shall enjoy, for the purpose of filing a European patent application in respect of the same invention, a right of priority during a period of twelve months from the date of filing of the first application. (2)filing that is equivalent to a regular national filing under the national law of the State where it was made or under bilateral or multilateral agreements, including this Convention, shall be recognised as giving rise to a right of priority. (3)A regular national filing shall mean any filing that is sufficient to establish the date on which the application was filed, whatever the outcome of the application may be. (4)A subsequent application in respect of the same subject-matter as a previous first application and filed in or for the same State shall be considered as the first application for the purposes of determining priority, provided that, at the date of filing the subsequent application, the previous application has been withdrawn, abandoned or refused, without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right of priority. The previous application may not thereafter serve as a basis for claiming a right of priority. (5)If the first filing has been made with an industrial property authority which is not subject to the Convention for the Protection of Industrial Property or the Agreement Establishing the , paragraphs 1 to 4 shall apply if that authority, according to a communication issued by the President of Patent Office, recognises that a first filing made with Patent Office gives rise to a right of priority under conditions and with effects equivalent to those laid down in the Convention. (1) An applicant desiring to take advantage of the priority of a previous application shall file a declaration of priority and any other document required, in accordance with the Implementing Regulations. (2)Multiple priorities may be claimed in respect of a European patent application, notwithstanding the fact that they originated in different countries. Where appropriate, multiple priorities may be claimed for any one claim. Where multiple priorities are claimed, time limits which run from the date of priority shall run from the earliest date of priority. (3)If one or more priorities are claimed in respect of a European patent application, the right of priority shall cover only those elements of patent application which are included in the application or applications whose priority is claimed. (4)If certain elements of the invention for which priority is claimed do not appear among the claims formulated in the previous application, priority may nonetheless be granted, provided that the documents of the previous application as a whole specifically disclose such elements. Effect of priority right The right of priority shall have the effect that the date of priority shall count as the date of filing of patent application for the purposes of Article 54, paragraphs 2 and 3, and Article 60, paragraph 2. Examination on filing and examination as to formal requirements (1)Patent Office shall examine, in accordance with the Implementing Regulations, whether the application satisfies the requirements for the accordance of a date of filing. (2)If a date of filing cannot be accorded following the examination under paragraph 1, the application shall not be dealt with as a European patent application. (3)If patent application has been accorded a date of filing, Patent Office shall examine, in accordance with the Implementing Regulations, whether the requirements in Articles 14, 78 and 81, and, where applicable, Article 88, paragraph 1, and Article 133, paragraph 2, as well as any other requirement laid down in the Implementing Regulations, have been satisfied. (4)Where Patent Office in carrying out the examination under paragraphs 1 or 3 notes that there are deficiencies which may be corrected, it shall give the applicant an opportunity to correct them. (5)If any deficiency noted in the examination under paragraph 3 is not corrected, patent application shall be refused unless a different legal consequence is provided for by this Convention. Where the deficiency concerns the right of priority, this right shall be lost for the application. Examination as to formal requirements (deleted) Drawing up of search report Patent Office shall, in accordance with the Implementing Regulations, draw up and publish a European search report in respect of patent application on the basis of the claims, with due regard to the description and any drawings. Publication of patent application (1) Patent Office shall publish patent application as soon as possible (a) after the expiry of a period of eighteen months from the date of filing or, if priority has been claimed, from the date of priority, or (b) at the request of the applicant, before the expiry of that period. (2) patent application shall be published at the same time as the specification of patent when the decision to grant the patent becomes effective before the expiry of the period referred to in paragraph 1(a). Examination of patent application (1)Patent Office shall, in accordance with the Implementing Regulations, examine on request whether patent application and the invention to which it relates meet the requirements of this Convention. The request shall not be deemed to be filed until the examination fee has been paid. (2)If no request for examination has been made in due time, the application shall be deemed to be withdrawn. (3)If the examination reveals that the application or the invention to which it relates does not meet the requirements of this Convention, the Examining Division shall invite the applicant, as often as necessary, to file his observations and, subject to Article 123, paragraph 1, to amend the application. (4)If the applicant fails to reply in due time to any communication from the Examining Division, the application shall be deemed to be withdrawn. Extension of the period within which requests for examination may be filed (deleted) Examination of patent application (deleted) (1)If the Examining Division is of the opinion that patent application and the invention to which it relates meet the requirements of this Convention, it shall decide to grant a European patent, provided that the conditions laid down in the Implementing Regulations are fulfilled. (2)If the Examining Division is of the opinion that patent application or the invention to which it relates does not meet the requirements of this Convention, it shall refuse the application unless this Convention provides for a different legal consequence. (3)The decision to grant a European patent shall take effect on the date on which the mention of the grant is published in Patent Bulletin. Publication of the specification of patent Patent Office shall publish the specification of patent as soon as possible after the mention of the grant of patent has been published in Patent Bulletin. OPPOSITION AND LIMITATION PROCEDURE (1)Within nine months of the publication of the mention of the grant of patent in Patent Bulletin, any person may give notice to Patent Office of opposition to that patent, in accordance with the Implementing Regulations. Notice of opposition shall not be deemed to have been filed until the opposition fee has been paid. (2)The opposition shall apply to patent in all the Contracting States in which that patent has effect. (3)Opponents shall be parties to the opposition proceedings as well as the proprietor of the patent. (4) Where a person provides evidence that in a , following a final decision, he has been entered in the patent register of such State instead of the previous proprietor, such person shall, at his request, replace the previous proprietor in respect of such State. Notwithstanding Article 118, the previous proprietor and the person making the request shall not be regarded as joint proprietors unless both so request. Opposition may only be filed on the grounds that: (a)the subject-matter of patent is not patentable under Articles 52 to 57; (b)patent does not disclose the invention in a sufficiently clear and complete for it to be carried out by a person skilled in the art; (c)the subject-matter of patent extends beyond the content of the application as filed, or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the content of the earlier application as filed. Examination of the opposition – Revocation or maintenance of patent (1)If the opposition is admissible, the Opposition Division shall examine, in accordance with the Implementing Regulations, whether at least one ground for opposition under Article 100 prejudices the maintenance of patent. During this examination, the Opposition Division shall invite the parties, as often as necessary, to file observations on communications from another party or issued by itself. (2)If the Opposition Division is of the opinion that at least one ground for opposition prejudices the maintenance of patent, it shall revoke the patent. Otherwise, it shall reject the opposition. (3)If the Opposition Division is of the opinion that, taking into consideration the amendments made by the proprietor of patent during the opposition proceedings, the patent and the invention to which it relates (a)meet the requirements of this Convention, it shall decide to maintain the patent as amended, provided that the conditions laid down in the Implementing Regulations are fulfilled; (b)do not meet the requirements of this Convention, it shall revoke the patent. Revocation or maintenance of patent (deleted) Publication of a new specification of patent If patent is maintained as amended under Article 101, paragraph 3(a), Patent Office shall publish a new specification of patent as soon as possible after the mention of the opposition decision has been published in Patent Bulletin. (1)Each party to the opposition proceedings shall bear the costs it has incurred, unless the Opposition Division, for reasons of equity, orders, in accordance with the Implementing Regulations, a different apportionment of costs. (2)The procedure for fixing costs shall be laid down in the Implementing Regulations. (3)final decision of Patent Office fixing the amount of costs shall be dealt with, for the purpose of enforcement in the Contracting States, in the same way as a final decision given by a civil court of the State in which enforcement is to take place. Verification of such decision shall be limited to its authenticity. Intervention of the assumed infringer (1) third party may, in accordance with the Implementing Regulations, intervene in opposition proceedings after the opposition period has expired, if the third party proves that (a) proceedings for infringement of the same patent have been instituted against him, or (b) following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent. (2) An admissible intervention shall be treated as an opposition. Request for limitation or revocation (1) At the request of the proprietor, patent may be revoked or be limited by an amendment of the claims. The request shall be filed with Patent Office in accordance with the Implementing Regulations. shall not be deemed to have been filed until the limitation or revocation fee has been paid. (2) The request may not be filed while opposition proceedings in respect of patent are pending. Limitation or revocation of patent (1)Patent Office shall examine whether the requirements laid down in the Implementing Regulations for limiting or revoking patent have been met. (2)If Patent Office considers that the request for limitation or revocation of patent meets these requirements, it shall decide to limit or revoke patent in accordance with the Implementing Regulations. Otherwise, it shall reject the request. (3)The decision to limit or revoke patent shall apply to patent in all the Contracting States in respect of which it has been granted. It shall take effect on the date on which the mention of the decision is published in Patent Bulletin. Publication of the amended specification of patent If patent is limited under Article 105b, paragraph 2, Patent Office shall publish the amended specification of patent as soon as possible after the mention of the limitation has been published in Patent Bulletin. Decisions subject to appeal (1)An appeal shall lie from decisions of the Receiving Section, Examining Divisions, Opposition Divisions and the Legal Division. It shall have suspensive effect. (2)A decision which does not terminate proceedings as regards one of the parties can only be appealed together with the final decision, unless the decision allows a separate appeal. (3)The right to file an appeal against decisions relating to the apportionment or fixing of costs in opposition proceedings may be restricted in the Implementing Regulations. Persons entitled to appeal and to be parties to appeal proceedings party to proceedings adversely affected by a decision may appeal. other parties to the proceedings shall be parties to the appeal proceedings as of right. Time limit and form Notice of appeal shall be filed, in accordance with the Implementing Regulations, at Patent Office within two months of notification of the decision. Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid. Within four months of notification of the decision, a statement setting out the grounds of appeal shall be filed in accordance with the Implementing Regulations. (1)If the department whose decision is contested considers the appeal to be admissible and well founded, it shall rectify its decision. This shall not apply where the appellant is opposed by another party to the proceedings. (2)If the appeal is not allowed within three months of receipt of the statement of grounds, it shall be remitted to without delay, and without comment as to its merit. If the appeal is admissible, shall examine whether the appeal is allowable. The examination of the appeal shall be conducted in accordance with the Implementing Regulations. Decision in respect of appeals (1)Following the examination as to the allowability of the appeal, shall decide on the appeal. may either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution. (2)If remits the case for further prosecution to the department whose decision was appealed, that department shall be bound by the ratio decidendi of , in so far as the facts are the same. If the decision under appeal was taken by the Receiving Section, the Examining Division shall also be bound by the ratio decidendi of . Decision or opinion of (1) In order to ensure uniform application of the law, or if a point of law of fundamental importance arises: (a)shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to if it considers that a decision is required for the above purposes. If rejects the request, it shall give the reasons in its final decision; (b)the President of Patent Office may refer a point of law to where two Boards of Appeal have given different decisions on that question. (2)In the cases referred to in paragraph 1(a) the parties to the appeal proceedings shall be parties to the proceedings before . (3)The decision of referred to in paragraph 1(a) shall be binding on in respect of the appeal in question. Petition for review by (1)party to appeal proceedings adversely affected by the decision of may file a petition for review of the decision by . (2)The petition may only be filed on the grounds that: (a)a member of took part in the decision in breach of Article 24, paragraph 1, or despite being excluded pursuant to a decision under Article 24, paragraph 4; (b)included a person not appointed as a member of the Boards of Appeal; (c)a fundamental violation of Article 113 occurred; (d)any other fundamental procedural defect defined in the Implementing Regulations occurred in the appeal proceedings; or (e)a criminal act established under the conditions laid down in the Implementing Regulations may have had an impact on the decision. (3)The petition for review shall not have suspensive effect. (4)The petition for review shall be filed in a reasoned statement, in accordance with the Implementing Regulations. If based on paragraph 2(a) to (d), the petition shall be filed within two months of notification of the decision of . If based on paragraph 2(e), the petition shall be filed within two months of the date on which the criminal act has been established and in any event no later than five years from notification of the decision of . The petition shall not be deemed to have been filed until after the prescribed fee has been paid. (5)shall examine the petition for review in accordance with the Implementing Regulations. If the petition is allowable, shall set aside the decision and shall re-open proceedings before the Boards of Appeal in accordance with the Implementing Regulations. (6)person who, in a designated , has in good faith used or made effective and serious preparations for using an invention which is the subject of a published European patent application or a European patent in the period between the decision of in Patent Bulletin of the mention of the decision of on the petition, may without payment continue such use in the course of his business or for the needs thereof. Common provisions governing procedure to be heard and basis of decisions (1)The decisions of Patent Office may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments. (2)Patent Office shall examine, and decide upon, patent application or patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent. Examination by Patent of its own motion (1)In proceedings before it, Patent Office shall examine the facts; it shall not be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought. (2)Patent Office may disregard facts or evidence which are not submitted in due time by the parties concerned. Observations by third parties In proceedings before Patent Office, following the publication of patent application, any third party may, in accordance with the Implementing Regulations, present Office of its own motion observations concerning the patentability of the invention to which the application or patent relates. That person shall not be a party to the proceedings. (1)Oral proceedings shall take place either at the instance of Patent Office if it considers this to be expedient or at the request of any party to the proceedings. However, Patent Office may reject a request for further oral proceedings before the same department where the parties and the subject of the proceedings are the same. (2)Nevertheless, oral proceedings shall take place before the Receiving Section at the request of the applicant only where the Receiving Section considers this to be expedient or where it intends to refuse patent application. (3)Oral proceedings before the Receiving Section, the Examining Divisions and the Legal Division shall not be public.