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Legislative Implementation of Flexibilities - Denmark

Title:Sections 9, 15 and 19 of the Consolidated Patent Act No. 91 of 28/01/2009 and rules 37-43 of the Order on Patents and Supplementary Protection Certificates No. 93 of 29/01/2009
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

9.- If the applicant so requests and pays the prescribed fee, the Patent Authority shall, in accordance with rules laid down by the Minister of Economic and Business Affairs, cause the application to be searched by an International Searching authority under the Cooperation Treaty, done at Washington on 19 June 1970.

15.-(1) If the applicant has not complied with the requirements prescribed for the application, or if the Patent Authority has other objections to the acceptance of the application, the applicant shall be notified accordingly and be invited to file his observations or to correct the application within a time limit to be specified. The Patent Authority may, however, make such amendments in the abstract as it finds necessary without consulting the applicant.

(2) If the applicant fails to file the required observations or to take steps to correct the application before the expiry of the time limit, the application shall be shelved. The notification referred to in subsection 1 shall contain information to that effect.

(3) The examination and other processing of the application shall, however, be resumed if the applicant submits his observations or takes steps to correct the application within 4 months after the expiry of the specified time limit and pays the prescribed resumption fee.

(4) If any renewal fee is not paid pursuant to sections 8, 41 and 42, the application shall be shelved without previous notification. The examination and other processing of an application shelved for that reason may not be resumed.

19.-(1) If the applicant complies with the requirements, and no objections have been found to the grant of a patent, and it has been established that the applicant approves the text in which the patent may be granted, the Patent Authority shall send a notification to the applicant to the effect that the patent may be granted against payment of the prescribed fee for publication of the patent specification.

(2) After the Patent Authority has sent the notification referred to in subsection 1, the claims may not be amended in such a way as to extend the scope of the protection conferred by the patent.

(3) The patent specification may at the request of the applicant to that effect to be published in Danish or in English with claims in Danish.

(4) The fee for publication of the patent specification shall be paid within 2 months after the Patent Authority has sent the notification under subsection1. Failure to pay shall cause the application to be shelved. The3 proceedings for grant shall, however, be resumed if the applicant pays the fee for publication of the patent specification and the prescribed fee within 4 months after the expiry of the time limit.

Regulations

Examination as to patentability

37.-(1) In examining whether the conditions laid down in section 2 of the Patents Act for the grant of a patent are complied with, the Patent Authority shall consider everything that comes to its attention.

(2) If deemed necessary, the examination shall also be based on other available information.

38.-(1) If the applicant wishes the search referred to in section 9 of the Patents Act to be per-formed, he shall, within 3 months from the date of filing of the application, or from the date on which the application is deemed to have been filed, file a request to that effect and pay the fee prescribed by the Searching Authority and a fee for the handling of the application by the Patent and Trademark Office.

(2) If the applicant wishes the search to be performed by a specific international authority out of several possible authorities, he shall specify that in the request.

(3) If the patent application is not written in a language accepted by the Searching Authority, the request shall be accompanied by a translation of the application into a language approved by the Searching Authority. If the Nordic Patent Institute is stated in the request, the application shall be translated into Danish, English, Icelandic, Norwegian or Swedish. If the Swedish Patent Office is stated in the request, the application shall be translated into Danish, Swedish or English, and if the European Patent Office is stated in the request, the

application shall be translated into English, French or German.

(4) If at the expiry of the time limit referred to in subsection 1 the patent application and the prescribed translation do not comply with the requirements as to form which apply to international applications, the request shall be deemed to be withdrawn.

39.-(1) If the Patent and Trademark Office has informed the applicant that an application relates to two or more mutually independent inventions in contravention of section 10 of the Patents Act, the application shall not be restricted to relate first to one invention and then, if that proves not to be patentable, be amended to relate to another of the inventions. Neither shall the application be related in parallel to several of the inventions.

(2) When the claims have been restricted due to lack of unity, the applicant shall be deemed in the application in question finally to have waived the invention or inventions deleted from the claims by the restriction.

40.- For the purpose of the examination and other processing of the application the Patent Authority may consult other experts.

41.- The Patent Authority may require the applicant to submit a model, sample or the like or to have investigations or experiments carried out.

42.-(1) If the applicant has also applied for a patent for the same invention abroad, the Patent Authority may, with the limitation specified in section 69(3), 2nd sentence, of the Patents Act, require the applicant to furnish information about any communication from the patent institution in question concerning the novelty of the invention or its patentability in other respects.

(2) The applicant shall, to the extent required by the Patent Authority, indicate the patent institutions with which he has applied for a patent for the invention and file a copy or a transcript of the communications with the said patent institutions as regards the novelty of the invention or its patentability in other respects. If the applicant has not received any such communication, the applicant shall submit a declaration to that effect.

43.- If, during the examination and other processing of a patent application, information of importance to the examination of the application is filed, the applicant shall be notified thereof. The person who has submitted such information shall, where relevant, be notified of the opportunity to file an opposition if and when a patent is granted.

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