CELEX: 11985I/PRO/19
Language: en
Date: 1985-06-12 00:00:00
Title: DOCUMENTS CONCERNING THE ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC TO THE EUROPEAN COMMUNITIES, ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES, PROTOCOL 19 ON PORTUGUESE PATENTS

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11985I/PRO/19

DOCUMENTS CONCERNING THE ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC TO THE EUROPEAN COMMUNITIES, ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC AND THE ADJUSTMENTS TO THE TREATIES, PROTOCOL 19 ON PORTUGUESE PATENTS  

Official Journal L 302 , 15/11/1985 P. 0458

DOCUMENTS* concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Communities - ACT concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties - Protocol No 19 on Portuguese patents (* Official Journal of the European Communities, No L 302, 15 November 1985.)1. The Portuguese Republic undertakes, upon accession, to adjust its patent law so as to make it compatible with the principles of the free movement of goods and with the level of protection of industrial property attained in the Community. In particular, the Portuguese Republic shall repeal, on accession, the provisions of Article 8 of Decree No 27/84 of 18 January 1984, under which the holder of a patent granted in Portugal must, in order to enjoy the exclusive rights conferred by that patent, manufacture on Portuguese territory the patented product or the product obtained by using a patented process.To that end, close cooperation shall be instituted between the Commission services and the Portuguese authorities; this cooperation shall also cover the problems of transition of current Portuguese law towards new law.2. The Portuguese Republic shall introduce, in its national legislation, a provision on shifting the burden of proof corresponding to Article 75 of the Luxembourg Convention of 15 December 1975 on the Community patent.This provision shall apply upon accession with regard to new process patents filed as from the data of accession.For patents filed prior to that date, this provision shall apply not later than 1 January 1992.However, this provision shall not apply if infringement proceedings are brought against the holder of another process patent for the manufacture of a product identical to that obtained as the result of the patented process of the plaintiff, if that other patent was issued before the date of accession.In cases where shifting the burden of proof does not apply, the Portuguese Republic shall continue to require the patent holder to adduce proof of infringement.In all cases where shifting the burden of proof does not apply on 1 January 1987, including patents filed before the date of accession, the Portuguese Republic shall pass new domestic legislation, with effect from that date introducing a judicial procedure known as »distraint-description«.»Distraint-description« means a procedure by which any person entitled to bring an action for infringement may, after obtaining a Court order, granted on his application, cause a detailed description to be made, at the premises of the alleged infringer, by a bailiff assisted by experts, of the processes in question, in particular by photocopying technical documents, with or without actual distraint. This Court order may order the payment of a security, intended to grant damages to the alleged infringer in case of injury caused by the »distraint-description«.3. The Portuguese Republic shall accede on 1 January 1992 to the Munich Convention of 5 October 1973 on the European patent and to the Luxembourg Convention of 15 December 1975 on the Community patent.The Portuguese Republic may invoke Article 95 (4) of the Luxembourg Convention on the Community patent with a view to introducing the purely technical adaptations made necessary by its accession to the said Convention, it being, however, understood that such an invocation can in no way delay the accession of the Portuguese Republic to the Luxembourg Convention beyond the abovementioned date.