- CHAPTER I GENERAL PROVISIONS
- CHAPTER II PATENTABLE INVENTIONS
- CHAPTER III REGISTRATION, PUBLICATION, AND EXAMINATION OFPATENT APPLICATION, GRANT OF THE PATENT
- CHAPTER IV RIGHTS AND OBLIGATIONS
- CHAPTER V TRANSFER OF RIGHTS
- CHAPTER VI DEFENSE OF RIGHTS IN INVENTIONS
- CHAPTER VII DUTIES OF THE STATE OFFICE FOR INVENTIONS ANDTRADEMARKS
- CHAPTER VIII TRANSITIONAL AND FINAL PROVISIONS
OFFICIAL GAZETTE OF ROMANIA, PART I, NO.541/ 8 AUGUST 2007
REPUBLICATION
PATENT LAW NO.64/19911
Art. 1 - The rights in inventions shall be recognized and protected on the territory of Romania by the grant of a patent by the State Office for Inventions and Trademarks under the conditions specified by the law.
The rights arising from the European patent shall also be recognized and protected, according to the law.
Art.2 - For the purposes of this Law, the terms and phrases below shall be defined as follows:
a) European patent - the patent granted under the European Patent Convention;
b) international application - the application for the protection of an invention, filed under the Patent Cooperation Treaty;
c) industrial property attorney - the person specialized in rendering assistance in the industrial property field (inventions, trademarks, industrial design etc.) which legally carries out said activity.
d) European Patent Convention - the Convention on the Grant of European Patents concluded in Munich on 5 October 1973, as amended by the act revising Article 63 EPC of 17 December 1991 and by the decisions of the Administrative Council of EPO of 21 December 1978, 13 December 1994, 20 October 1995, 5 December 1996
1Republished within the meaning of Art. IV of the Law no.28/2007 for amending and completing the Patent Law no. 64/1991, published in the Official Gazette of Romania, Part I, no. 44 of 19 January 2007 and rectified in the Official Gazette of Romania, Part. I, no.351 of 23 May 2007, the texts being given a new numbering.
Patent Law no. 64/1991 was republished in the Official Gazette of Romania, Part I, no. 752 of 15 October 2002, and subsequently amended by: and 10 December 1998, as well as by the Revision Act adopted in Munich on 20 November 2000;
e) Paris Convention - Paris Convention for the Protection of Industrial Property of 20 March1883, as revised and amended;
f) description - the presentation of the invention in writing;
g) inventor - the person who created the invention;
h) professional representative - industrial property attorney who may also undertake representation in proceedings before the State Office for Inventions and Trademarks;
i) OSIM - the State Office for Inventions and Trademarks;
j) predecessor - natural or legal person entitled to the patent before the filing of the patent application;
k) publication - dissemination of information in a manner accessible to the public;
l) applicant - the natural or legal person applying for the grant of a patent;
m) successor in title - any natural or legal person to whom either the right to the grant of the patent, or the rights arising from a granted patent, was transferred;
n) claim - the part of the patent comprising the subject-matter of the requested protection and whose contents determine the scope of protection;
o) patent owner - the natural or legal person to whom the right conferred by the patent belongs;
p) employer - legal person functionning legally;
q) person exploiting the invention - natural or legal person who legally applies the invention. The person exploiting the invention may be the same person as the patent owner.
Art. 3 - The right to the patent shall belong to the inventor or his successor in title.
Art. 4 - Where the invention has been created jointly by several inventors, each of them shall have the status of joint inventor and the right shall belong to them jointly.
If two or more persons have created the same invention independently of one another, the right to the patent shall belong to the person who filed the patent application having the earliest filing date.
Art. 5 - Where the inventor is an employee, in the absence of a contractual provision more favourable to him, the right to the invention shall belong:
a) to the employer, in the case of inventions made by the employee under a contract of employment that explicitly provides for an inventive mission corresponding to his duties; the inventor shall be paid additional remuneration specified by contract;
b) to the employee, in the case of inventions made by him, either in the course of his duties, or in the field of activity of the employer, through knowledge or use of technology or means specific to the employer, or information available on the premises of the employer, or again with material assistance from the employer, except where otherwise provided by the contract.
Where the invention is the result of a research contract, unless otherwise provided, the right to the patent shall belong to the employer who commissioned the research, the inventor being entitled to additional remuneration specified in an additional clause of the contract.
In the cases provided for in paragraph 1 a) and b) and in paragraph 2, the inventor and the employer shall have the obligation to inform each other in writing on the creation and the stage of development of the invention and to refrain from disclosing it.
Failure to observe the obligation to inform shall result in the liability of the person responsible.
If, in the cases provided for in paragraph 1 a) and paragraph 2, the patent application has not been filed with OSIM within 60 days of the employee’s having informed the employer in writing on the drawing up of the description of the invention, the right to be granted the patent shall belong to the employee under the conditions provided for in paragraph 1 b), unless otherwise agreed between the parties.
In the case provided in paragraph 1 b), the employer shall have a preferential right to conclude a contract in respect of the invention of his employee and it shall be exercised within 3 months from the employee’s offer; in the absence of an agreement on the contract price, it shall be fixed by judicial decision.
Art. 6 - Foreign natural or legal persons having their domicile or registered office outside the territory of Romania shall benefit by the provisions of this law, according to international treaties and conventions on inventions to which Romania is a party.
Art. 7 - A patent shall be granted for any invention having as a subject-matter a product or a process, in all technological fields, provided that it is new, involves an inventive step and is susceptible of industrial application.
Inventions in the field of biotechnology shall be patentable if they relate to:
a) biological material which is isolated from its natural environment or produced by any technical process, even if it previously occurred in nature;
b) plants or animals, if the technical feasibility of the invention is not limited to a particular plant variety or animal breed;
c) a microbiological process or other technical process or a product, other than a plant variety or animal breed, obtained by means of said process;
d) an element isolated from the human body or otherwise produced by a technical process, including the sequence or partial sequence of a gene, even if the structure of that element is identical to that of a natural element.
Art. 8 - The following in particular shall not be considered as inventions, within the meaning of Art. 7:
a) discoveries, scientific theories and mathematic methods;
b) aesthetic creations;
c) schemes, rules and methods for performing mental acts, playing games or doing business, as well as computer programs;
d) presentations of information.
The provisions of paragraph 1 shall exclude the patentability of the subject-matters or activities referred to therein, only to the extent to which the patent application or patent relates to such subject-matter or activities as such.
Art. 9 - Patents shall not be granted under this Law in respect of:
a) inventions the exploitation of which would be contrary to public order or morality, including inventions harmful to the health or life of persons, animals or plants, and which are likely to seriously harm the environment, provided that such exception from patentability shall not depend merely on the fact that exploitation is prohibited by a legal provision;
b) plant varieties and animal breeds, as well as the essentially biological processes for the production of plants or animals. This provision shall not apply to microbiological processes or products obtained thereby;
c) the inventions having as a subject-matter the human body in its various stages of formation and development, as well as the mere discovery of one of its elements, including the sequence or partial sequence of a gene;
d) methods of treatment concerning the human or animal body, by surgery or therapy and methods of diagnosis applied to human or animal body.
The provisions of paragraph 1 d) shall not apply to products, in particular substances or compositions to be used in any such method.
Art.10 - An inventions shall be considered to be new if it does not form part of the state of the art.
The state of the art shall be held to comprise all knowledge that has been made available to the public by means of a written or oral description, by use, or in any other way before the date of filing of the patent application.
The state of the art shall be also held to comprise the content of the patent applications filed with OSIM and international applications that have been entered the national phase in Romania or European patent applications designating Romania as filed, provided that their filing date is prior to the date referred to in paragraph 2 and they were published on or after that date, according to the Law.
The provisions of paragraphs 2 and 3 shall not exclude the patentability of any substance or composition comprised in the state of the art, to be used in a method referred to in Art. 9, paragraph 1 d), provided that its use in any such method is not comprised in the state of the art.
The provisions of paragraphs 2 and 3 shall not exclude the patentability of any substance or composition referred to in paragraph 4, for any other specific use, in any method referred to in Art. 9, paragraph 1 d), provided that its use in any such method is not comprised in the state of the art.
Art. 11 - For the application of Art. 10, the disclosure of the invention shall not be taken into consideration if it occurred within the six months preceding the filing of the patent application, and if was due to or in consequence of:
a) an evident abuse in relation to the applicant or his legal predecessor;
b) the fact that the applicant or his legal predecessor has displayed the invention at an official or officially recognized international exhibition falling within the terms of the Convention on international exhibitions signed at Paris on 22 November 1928 with the subsequent revisions.
The provisions of paragraph 1 b) shall be applicable omly if the applicant states, when filing the patent application, that the inventions has been actually displayed and if he files a document supporting his statement within the time limit and under the conditions provided for by the implementing regulations concerning this Law.
Art. 12 - An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.
Patent applications referred to in Art. 10, paragraph 3, although included in the state of the art, are not to be considered in deciding whether there has been an inventive step.
Art. 13 - An invention shall be considered as susceptible of industrial application if it can be made or used in any industry, including agriculture.
The industrial application of a sequence or partial sequence of a gene must be disclosed in the patent application.
Art.14 - The patent application drawn up in Romanian must contain:
a) the request for the grant of a patent;
b) applicant’s identification data;
c) a description of the invention;
d) one or more claims;
e) drawings referred to in the description or the claims.
If the applicant is not the inventor, the patent application shall also contain particulars serving to identify the inventor and shall be accompanied by a document indicating the origin of the right to the grant of the patent.
The document referred to in paragraph 2 shall be filed before a decision is taken in respect of the patent application.
The patent application shall be filed by the person entitled to the grant of the patent, either in person, or in any manner specified by the regulations for implementing this Law.
In all the proceedings before OSIM, the applicant shall be regarded as the person entitled to the grant of the patent.The patent application shall be filed with OSIM, at the applicant’s choice on paper or in any other form and means of transmittal agreed by OSIM and provided in the regulations for implementing this Law.
The patent application shall be accompanied by an abstract which may not be filed later than 2 months before the patent application publication date.
The abstract shall exclusively serve for use as technical information; it may not be taken into account for other purposes, in particular not for the purpose of interpreting the scope of protection nor for the purpose of applying the provisions of Art. 10, paragraph 3.
Art. 15 - The date of filing of the patent application shall be the date on which the following are registered with OSIM:
a) an explicit or implicit indication that the grant of a patent is requested;
b) indications serving to identify the applicant or to make possible for OSIM to contact him:
c) a part which shuold, at first sight, seem to be a description of the invention.
Where a part of the description is missing, for the purposes of according the filing date, said part can be subsequently filed, the filing date being the date on which said part is filed and on which the fee for the registration of that part is paid.
If the missing and subsequently filed part of the description specified under paragraph 1 c) is withdrawn, the filing date shall be the date on which the requirements referred to in paragraph 1 are fulfilled.
The conditions for the subsequent filing and those for the withdrawal of the missing and subsequently filed part pursuant to the paragraph 2 shall be laid down by the Implementing Regulations in respect of this Law.
Where the patent application does not comprise a part which, at first sight seems to be a description, for the purpose of according a filing date, reference may be made in the patent application, in the Romanian language, to a prior application filed with any office, which replace the description, while observing the provisions of the regulations for implementing this Law. Otherwise, the application shall not be treated as a patent application.
The patent application shall be registered in the National Register of Patent Applications. The data contained in the Register shall not be available to the public, until their publication in the Official Industrial Property Bulletin, according to the special law.
The claims and drawings relating to the invention may be filed within two months from the date of filing the patent application, provided that the legal fee is paid.
In the case of the international patent application or the European patent application, the filing date shall be the date resulting from the international treaties and conventions to which Romania is party and that date shall be registered in the National Register of Patent Applications.
Art. 16 - Natural or legal persons may, on justified reasons, file the description, claims and drawings in a foreign language, provided that a certified translation of said documents in the Romanian language is filed with OSIM within 2 months from the registration of the patent application or from the date of entering the national phase, as the case may be, and the legal fee is paid.
There shall be considered as complying with the requirements concerning the form and the content of an application under this Law:
a) international applications complying with the requirements concerning the form and the content prescribed by the Patent Cooperation Treaty adopted by the Diplomatic
th nd
CHAPTER I - GENERAL PROVISIONS
CHAPTER II - PATENTABLE INVENTIONS
CHAPTER III - REGISTRATION, PUBLICATION, AND EXAMINATION OF PATENT APPLICATION, GRANT OF THE PATENT