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Legislative Implementation of Flexibilities - Serbia

Title:Articles 40-45 of the Patent Law of 10/07/2004
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Examination as to Form

Article 40

Once the application has been accorded a date of filing, the competent authority shall examine whether it meets all requirements for publication, particularly taking into account whether:

1) the filing fee for the application has been paid;

2) a valid authorisation for the representative or a statement on the appointment of a common representative has been filed, where appropriate;

3) the application contains designation of the inventor or a statement to the effect that he does not wish to be mentioned in the application;

4) a claim for a grant of priority, satisfying all formal requirements, has been filed;

5) a statement specifying the grounds for the filing of the application has been submitted;

6) the application has been filed through a representative, pursuant to Article 4 of this Law, in the event that the applicant is a foreign national;

7) the application contains all documents prescribed by Article 23 of this Law and they satisfy all requirements as to form;

8) a separate application has been filed for each invention, where, at first glance, the application fails to meet the requirements concerning unity of invention referred to in Article 22 of this Law.

If the examination stipulated in paragraph 1 of this Article shows that the application is not in conformity with the provisions of that paragraph, the competent authority shall set out the reasons thereof in a communication to the applicant, inviting him to correct the deficiencies within an appropriate time limit. Such time limit shall not be less than 60 or more than 90 days.

On a reasoned request by the applicant, the competent authority may extend the time limit specified in paragraph 2 of this Article, for a period it deems appropriate, but not exceeding 90 days.

If the applicant fails to remedy the defects referred to in paragraph 2 of this Article, the competent authority shall take a decision to reject the application.

Publication of Patent Application

Article 41

A patent application that satisfies all the requirements laid down in Article 40, paragraph 1 of this Law shall be published in the Official Bulletin of the competent authority, as soon as possible upon the expiry of eighteen months from the filing date of the application or from the claimed date of priority.

At the request of the applicant, the patent application may be published earlier, but not before the expiry of three months from the filing date.

The content of the publication shall be defined by a regulation under this Law.

Request for Substantive Examination as to Patentability

Article 42

The request for substantive examination of a patent application shall be filed by the applicant after the publication of the application in the Official Bulletin within a period of six months from the date of publication.

In the event of failure to observe the time limit specified in the previous paragraph, the applicant may file the request referred to in paragraph 1 of this Article within an extended period of 30 days from the date of the receipt of a notification of the expiry.

The request referred to in paragraph 1 of this Article may not be withdrawn.

If the applicant fails to file a request under paragraph 1 of this Article within the prescribed time limit, the patent application shall be deemed withdrawn and a decision to that effect shall be given.

Substantive Examination Procedure

Article 43

In the course of the substantive examination of an application, the competent authority shall examine whether the subject matter of the application:

1) constitutes an invention within the meaning of Articles 5 and 6 of this Law;

2) constitutes an invention patentable within the terms of Article 7 of this Law;

3) constitutes an invention that is in accordance with Article 22 of this Law relating to unity of invention;

4) is disclosed in a manner sufficiently clear and complete pursuant to Article 25 of this Law;

5) constitutes a technical solution of a specific problem, is new in accordance with Articles 8 and 9 of this Law, involves an inventive step as set out by Article 10 and is susceptible to industrial application as laid down in Article 11 of this Law;

The substantive examination of a patent application shall be conducted within the limits set by the content of the patent claims.

The utility of the invention shall not be examined during the substantive examination procedure.

Article 44

If the competent authority establishes that the subject matter of an application does not meet the requirements laid down in Article 43 of this Law, the applicant shall be informed thereof in the examination report and shall be invited to comment on the reasons preventing the grant of a patent or to rectify any deficiencies identified, within an appropriate time limit. This time limit shall be not be less than 60 days nor more than 90 days.

On a reasoned request from the applicant, the competent authority shall extend the time limit under paragraph 1 of this Article for such a period as it deems appropriate, but not exceeding 90 days.

Article 45

An applicant, who has filed an application for the same invention in any other state, may furnish the competent authority with a certified translation of the examination report issued in the said state.

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