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Legislative Implementation of Flexibilities - Slovakia

Title:Articles 40- 44 of the Patent Act No. 435/2001as last amended by Act No. 202/ 2009 Coll.
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Preliminary examination of application

Article 40

(1) Within preliminary examination the Office shall ascertain whether

a) conditions to determine filing date of an application pursuant to Article 35 have been met,

b) conditions to confer priority right pursuant to Article 36 have been met,

c) application meets conditions pursuant to Articles 37, 38 and 59,

d) application meets conditions pursuant to a generally binding regulation (Article 80),

e) applicant has paid an appropriate administrative fee pursuant to Article 79(9),

f) applicant is being represented by an authorised representative pursuant to Article 79(1),

g) application does not contain a subject-matter which clearly fails to meet conditions pursuant to Article 5(1) or is not being considered to be an invention pursuant to Article

5(3), or which is a subject to exclusion from patentability pursuant to Article 6.

(2) In case of doubts the Office may invite an applicant to prove utility of a subject matter of an application by its demonstrating or in another suitable manner. If an applicant fails to prove utility or fails to comply with an invitation, subject-matter of an application shall be deemed not to be utilisable.

(3) In case that irregularities have been ascertained pursuant to paragraph 1(e) and (f) or Article 35(2), or Article 37(3) and (5), or Article 79(9), or pursuant to implementing regulation (Article (80)), the Office shall invite an applicant to correct these irregularities within the prescribed time limit or to respond to the invitation. If an applicant fails to comply with the invitation within the prescribed time limit or his response fails to rebut validity of the invitation , the Office shall suspend application proceedings. An applicant shall be notified in an invitation about this consequence.

(4) If an application fails to meet conditions pursuant to Article 37(1) and (4) or Article

38(1) to (3) or a subject-matter of an application evidently fails to meet conditions pursuant to Article 5(1), or it is not being considered to be an invention pursuant to Article 5(3), or is subject to exclusion from patentability pursuant to Article 6, or an assumption pursuant to paragraph 2 applies, the Office shall refuse an application. Before an application is refused, the Office shall enable an applicant to respond to ascertained reasons for refusal of an application .

(5) If conditions for claiming priority right pursuant to Article 36(2) to (9) and pursuant to generally binding regulation (Article 80) have not been met, the Office shall grant to an applicant priority right pursuant to Article 36(1)(a).

Article 41

(1) The Office shall publish an application after expiry of 18 months from rise of priority right without delay and shall communicate this publication in the Journal.

(2) An application may be published before expiry of the time limit prescribed in paragraph 1, if an applicant requests it no later than within 12 months from rise of priority right and if he pays administrative fee (Article 79(9)). The Office shall publish an application before expiry of the time limit prescribed in paragraph 1, if a patent has already been granted for an invention; the Office shall not publish an application before expiry of 12 months from rise of priority right without consent of an applicant.

(3) The Office may publish, together with an application, a search report on a state of the art related to an invention applied in an application.

Article 42

(1) Any person may file oppositions on patentability of a subject-matter of an application with the Office after publication of an application; the Office shall take them into consideration during substantive examination of an application.

(2) Persons who have filed oppositions pursuant to paragraph 1 shall not become parties to application proceedings. However, an applicant shall be notified about oppositions and shall have right to respond to them.

Substantive examination of an application

Article 43

(1) On request of an applicant, third party or ex officio, the Office shall conduct without delay substantive examination of an application, in which it shall ascertain whether an application meets conditions for granting a patent prescribed by this Act.

(2) Request for conducting substantive examination has to be filed no later than within 36 months from filing an application (Article 35) and it cannot be withdrawn. Requesting person shall be obliged to pay administrative fee (Article 79(9)) together with a request.

(3) If a request for conducting substantive examination has not been filed properly within the time limit prescribed in paragraph 2, or if within the same time limit the Office failed to start substantive examination of an application ex officio, the Office shall suspend application proceedings.

(4) The Office shall notify an applicant without delay about starting of substantive examination on request of a third party or ex officio.

Article 44

(1) If conditions stipulated for granting patent are not met (Articles 5, 7, 8 and 9), the

Office shall refuse an application. Before an application is refused, the Office shall enable an applicant to respond to ascertained reasons on basis of which an application shall be refused.

(2) If the Office additionally ascertains irregularities in an application or failure to meet conditions, which are subject-matter of preliminary examination of an application, it shall proceed according to Article 40(2) to (5).

(3) If several applications with an identical subject-matter have been filed, only one patent shall be granted to one applicant. .

(4) If a subject-matter of an application meets stipulated conditions and an applicants pays an appropriate administrative fee (Article 79(9)), the Office shall grant a patent to an applicant and an applicant shall become an owner of a patent. The Office shall issue a patent document to an owner and granting of a patent shall be published in the Journal.

(5) Owner of a patent shall be obliged to pay an maintenance fee under special regulation 13a).

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