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Legislative Implementation of Flexibilities - Romania

Title:Articles 40 and 41 of the Patent Law No. 64/1991 as republished on Official Gazette of Romania, Part I, no. 541/ 8 august 2007 and Article 7 (3) to (20) of the Implementing Regulations of the Patent Law No. 64/1991 of 21/05/2008
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Art. 40 - An invention for which a patent application has been filed with OSIM shall not be disclosed without the applicant's consent, until the publication thereof, and have, until publication, the character established by the special law.

Information in the field of national defense and State security included in an invention created on the territory of Romania and being the object of a patent application may be classified as secret of State by the competent authorities; in such case, the applicant shall be informed accordingly by the authority that has classified the information and may, on a contract basis, benefit by a compensation granted by said authority under the conditions prescribed by the Implementing Regulations to this Law.

The secrecy of information classified as secret of State may be lifted at the discretion of the authority that has classified them.

Art. 41 - Inventions made by Romanian natural persons on the territory of Romania may not be patented abroad until a patent application has been filed with OSIM.

In the case of inventions containing information classified as secret of State, the grant of foreign patents shall be possible only after such secrecy has been lifted, according to Art. 40, paragraph 3.

For the patenting abroad of the inventions referred to in paragraph 1 above, Romanian applicant or patent owners may avail themselves of financial support, pursuant to the law.

With regard to the inventions referred to in paragraph 1, the Romanian natural persons who have created them or their successors in title shall inform OSIM of their intention to apply for a patent abroad.

For the registration of international applications with a view to patenting inventions in other States, OSIM shall act as a receiving Office, pursuant to the Patent Cooperation Treaty.

Article 7 (3) to (20) of the Implementing Regulations of the Patent Law No. 64/1991 of 21/05/2008

(3) According to Art. 40 (2) of the Law, the task of assigning the state secret character to the information contained in the documents concerning the inventions in the field of the national defense or national security, for which the Ministry of Defense, Ministry of Interior and Administration Reform, Romanian Intelligence Service manifested their interest, vests in them within 60 days from the filing date.

(4) Upon the recommendation by the representatives of the Ministry of Defense, Ministry of Interior and Administration Reform or of Romanian Intelligence Service in respect of attributing the state secret character to patent applications which do not belong to the national defense or security, OSIM shall invite the representatives of the entitled institutions to say their opinion in respect of the character of information in the patent application. In the situation when, within 30 days from sending the invitation, the representatives of the entitled institutions fail to say their opinion, this information shall be deemed not to be classified.

(5) Where the information relating to an invention is classified by the habilitated institutions, the patent application is subjected to the provisions stipulated by the Law, while observing the legal provisions concerning the classified information.

(6) The representatives of the Ministry of Defense, Ministry of Interior and Administrative Reform, Romanian Intelligence Service or of other entitled institutions have the obligation to ensure transmittal, transport and storing of the documents that contain such information, based on the agreements signed with OSIM and on the provisions in force concerning the classified information.

(7) The information relating to or in connection with patent applications filed with OSIM, and classified as state secret will be protected according to the secrecy level attributed by the issuer, this having the obligation to notify OSIM about any change of the classification level and of the time period for which they were classified.

(8)The institution that classified the information relating to or in connection with the inventions as state secrets shall pay, into the account of OSIM, the annual fee for maintaining the patent application to the secrecy level assigned, within 60 days from the date of assigning the secrecy level, and within the same period of time, it shall notify the applicant about the secrecy level assigned and the time limit for which the information was classified; the applicant may lodge an appeal to the authority that classified said information. The decision concerning the appeal shall be communicated to OSIM by the interested person within 30 days from the date of making the decision.

(9) The Ministry of Defense, Ministry of Interior and Administration Reform, the Romanian Intelligence Service and other authorized institutions may keep the copy of the description, claims and drawings of the patent application attached to the notification that OSIM transmitted, as a consequence of classifying the information, according to paragraph (8), for the whole period for which the corresponding fee for maintaining the invention in the "state secret" level has been paid.

(10) The authorized institution that has classified the information relating to or in connection with the invention shall notify OSIM of the declassification or passing thereof to a lower secrecy level, and OSIM shall deal with the invention according to the new secrecy level, or as unclassified information as the case may be.

(11) Pursuant to the provisions of Art. 40 paragraph (2) of the Law, the Ministry of Defense, the Ministry of Interior and Administration Reform, the Romanian Intelligence Service or another authorized institution shall grant an equitable material compensation to the applicant or owner of the patent that contains information classified the patent application which has been assigned the state secret status or to the patent owner, said compensation being established by contract for the whole period of maintaining the invention in this category; any litigation concerning the contract shall be solved by the law court.

(12) In case of their own inventions, the Ministry of Defense, the Ministry of Interior and Administrative Reform, the Romanian Intelligence Service or another entitled institution, in the position of applicant, shall classify the information relating to or in connection with the invention prior to transmitting and filing the patent application with OSIM.

(13) OSIM shall ensure the required conditions for keeping records, holding, handling and multiplying the information classified as state secrets contained in an invention or of the ones referring to them, depending on the secrecy level assigned, pursuant to the provisions of the special regulations.

(14) Where a patent application in the biotechnological field contains information classified as a state secret, the related microorganism deposited with an international depository institution, in order to comply with the provisions of Art. 18 paragraph (2) of the Law, shall have the same secrecy level.

(15) In order to classify the information contained in the patent applications filed with OSIM as state secret, to declassify or to pass it to a lower classification level, the representatives of the qualified institutions shall have access to all the information concerning the invention, and in case of an invention from the biotechnological field, also have access to the microorganism or to samples of the microorganism deposited to an international depository institution.

(16) Any person within OSIM that has knowledge about information classified according to the provisions of Art. 40 paragraph (2) of the Law or who perform works by using this information, shall be informed of the assigned secrecy level.

(17) If the applicant states, according to the provisions of Art. 27, that the disclosure of the invention that is the subject-matter of the patent application occurred in the conditions of the provisions of Art. 11 of the Law and the information relating to or in connection with the invention is classified, OSIM notifies the issuer relative to the necessity of declassifying the information.

(18) Where the information relating to the patent application classified as state secret has not been declassified by observing the provisions of Art. 25 paragraph (2) of the Law, the patent application shall be declared as deemed to be withdrawn, according to the provisions of Art.28 paragraph (4) letter f) of the Patent Law.

(19) When the information relating to or in connection with the invention that is the subject-matter of the patent application has been classified as restricted documents, the director of the legal entity having the position of applicant shall declassify the information with a view to publishing the application, and shall request the publication in writing with OSIM.

(20) Failure to declassify the information provided for in paragraph (19), the patent application shall be declared as being withdrawn and the information will be maintained with OSIM as being classified as "restricted documents" up to their declassification by the issuer.

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