belgiquelex.be - Carrefour Bank of Legislation

10 JANVIER 2011. - Implementing Act of the Treaty on the Law of Invention Patents and the Act Revisioning the Convention on the Grant of European Patents, and amending various provisions in respect of invention patents (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Act of 28 March 1984
on invention patents
Art. 2. In Article 1^er of the Act of 28 March 1984 on Invention Patents, as amended by the Act of 28 April 2005, paragraph 1^er is replaced by the following:
« § 1^er. For the purposes of this Act:
1° Paris Convention: the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883 and approved by the law of 5 July 1884, including each of its revised Acts ratified by Belgium;
2° Treaty of Cooperation: the Patent Cooperation Treaty, made in Washington on 19 June 1970 and approved by the Act of 8 July 1977;
3° TRIPS Agreement: the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C of the Agreement establishing the World Trade Organization, signed in Marrakech on 15 April 1994 and ratified by the Act of 23 December 1994;
4° Patent Law Treaty: the Patent Law Treaty, made in Geneva on 1^er June 2000;
5° European Patent Convention: the Convention on the Grant of European Patents, made in Munich on 5 October 1973, approved by the Act of 8 July 1977, as amended by the Act revising the Convention on the Grant of European Patents, adopted in Munich on 29 November 2000 and approved by the Act of 21 April 2007;
6th Act of 10 January 1955: the law relating to the disclosure and implementation of inventions and secrets of factory relevant to the defence of the territory or the security of the State;
7° World Trade Organization: the organization established by the Agreement establishing the World Trade Organization, signed in Marrakech on 15 April 1994 and ratified by the law of 23 December 1994;
8° European Patent Office: the European Patent Office established by the European Patent Convention;
9° Minister: Minister with Intellectual Property in his powers;
10° Office: the Office of Intellectual Property with the Federal Public Service with Intellectual Property in its powers;
11° Register: the Register of Invention Patents;
12° Collection: the Compendium of Invention Patents;
13° biological material: a substance containing genetic information that is self-reproducible or reproducible in a biological system;
14° microbiological process: any process using a microbiological substance, involving an intervention on a microbiological substance or producing a microbiological substance;
15° essentially biological process for obtaining plants or animals: process of obtaining plants or animals consisting entirely of natural phenomena such as cross-breeding or selection;
16° right to obtain plant: right granted to the breeder of a new plant variety as defined by the law on the protection of plant varieties;
17° plant variety: plant variety as defined in section 5 of Council Regulation (EC) No. 2100/94 of 27 July 1994 establishing a community protection regime for plant varieties;
18° written: a series of intelligible, signed and accessible signs, which may be consulted at a later date, regardless of their support and transmission modalities;
19° signature: a handwritten or electronic signature. When the signature is electronic, the King determines the mechanism(s) to presume that the identity of the signatory and the integrity of the act are guaranteed;
20° annual fees: annual patent retention fees. »
Art. 3. In section 2 of the Act, amended by the Act of April 28, 2005, paragraph 1^er is replaced by the following:
"Under the conditions and within the limits set out in this Act, it is granted under the name "patent of invention", referred to below as a patent, an exclusive and temporary right to prohibit third parties from exploiting any invention, in all technological fields, which is new, implies an inventive activity and is subject to industrial application. »
Art. 4. Section 4 of the Act, as amended by the Act of 28 April 2005, is supplemented by paragraph 5 as follows:
“§ 5. Invention patents are not issued for surgical or therapeutic treatment methods of the human or animal body and diagnostic methods applied to the human or animal body. This provision is not applicable to products, including substances or compositions, for the implementation of one of these methods. »
Art. 5. In section 5 of the Act, the following amendments are made:
Paragraph 3 is replaced by the following:
Ҥ3. The content is also considered to be included in the state of the art:
1° of Belgian patent applications;
2° of European patent applications;
3° or international patent applications for which the European Patent Office is designated office and for which the applicant has fulfilled within the prescribed time limits the conditions provided for in Article 153(3) or (4) as the case may be, and Rule 159(1) of the Implementing Regulations of the European Patent Convention,
as filed, which has a filing date prior to that referred to in § 2 and has been published only at that date or at a later date. »;
2° Paragraph 4 is replaced by the following:
“§4. The provisions of §§ 2 and 3 do not exclude the patentability of a substance or composition included in the state of the technique for the implementation of a method referred to in Article 4, § 5, provided that its use for any of these methods is not included in the state of the technique. »;
3° it is inserted a paragraph 4bis, as follows:
§ 4bis. Nor do the provisions of §§ 2 and 3 exclude the patentability of a substance or composition referred to in § 4 for any specific use in a method referred to in Article 4, § 5, provided that such use is not included in the state of the technique. »
Art. 6. In section 7 of the Act, paragraph 2 is repealed and the indication "§ 1^er » is deleted.
Art. 7. Section 12 of the Act is replaced by the following:
“Art. 12. The inventor is mentioned in the patent, unless otherwise and expressly requested by him.
The King shall determine the terms and time limits for transmission to the Agency of the request referred to in the preceding paragraph. »
Art. 8. Section 14 of the Act is replaced by the following:
“Art. 14. Without prejudice to the application of the provisions of Chapter III, the filing of the patent application shall be made to the Agency either in person or by postal mail or in any other manner determined by the King.
A receipt, made without charge by the Agency's official delegated to that effect by the Minister, notes each deposit by stating the day on which the documents were received. The receipt shall be notified to the applicant or his representative in accordance with the terms determined by the King. »
Art. 9. Article 15, § 1^er, of the same law, as amended by the Act of 28 April 2005, is supplemented by 7) as follows:
"7) the designation of the inventor or the request referred to in article 12, paragraph 1^er. »
Art. 10. Section 16 of the Act is replaced by the following:
“Art. 16. § 1^er. As long as it is satisfied with the provisions of Article 14 and subject to the provisions of §§ 4 to 9, the date of filing of the patent application is the date on which the Agency has received all the following elements from the applicant:
1° an explicit or implicit indication that the elements are supposed to constitute a patent application;
2° of the indications for establishing the identity of the applicant and allowing the Agency to contact the applicant;
3° a part that at first sight seems to be a description.
§ 2. For the purpose of assigning the filing date, a drawing is accepted as an element referred to in § 1^erThree.
§ 3. The party referred to in § 1^er, 3°, may be filed in any language, for the purpose of assigning the filing date.
§ 4. When the application does not meet one or more of the conditions set out in § 1^er, the Agency shall notify the applicant as soon as possible and offer the opportunity to comply with these conditions and to make representations within a time limit set by the King.
§ 5. Where the application as originally filed does not meet one or more of the conditions set out in § 1^erthe date of filing shall, subject to the provisions of paragraph 2 and § 7, be the date on which it has been satisfied with all the conditions set out in § 1^er.
If it is not satisfied with one or more conditions referred to in paragraph 1^er within the time limit set by the King, the application shall be deemed not to have been filed. When the application is deemed not to have been filed, the Agency shall notify the applicant of the reasons.
§ 6. Where, by assigning the filing date, the Agency finds that a portion of the description appears not to be included in the application or that the application refers to a drawing that does not appear to be included in the application, the Agency shall notify the applicant at short notice.
§ 7. Where a missing part of the description or a missing drawing is filed with the Agency within the time limit prescribed by the King, that part of the description or drawing is incorporated in the application and, subject to the provisions of paragraphs 2 and 3, the date of filing is, the date on which the Agency received this part of the description or drawing, the date on which all the conditions set out in § 1^er and 2 are filled, according to that of these two dates which is later.
Where the missing part of the description or missing drawing is filed with the Agency in accordance with the provisions of paragraph 1^er in a manner that regulates an incomplete application which, on the date at least one of the elements referred to in § 1^er has been received by the Agency, claiming the priority of an earlier application, the date of filing is, upon request of the applicant submitted within the time limit set by the King, subject to the conditions prescribed by the King and subject to the fact that the missing elements subsequently added are in the priority document, the date on which it was satisfied with all the conditions set out in §§ 1^er and 2.
When the missing part of the description or missing drawing that was filed in accordance with the provisions of paragraph 1^er is then withdrawn within the time limit set by the King, the date of deposit is the date on which it has been satisfied with all the conditions set out in §§ 1^er and 2.
§ 8. Subject to the conditions laid down by the King, a reference, made at the time of filing of the application, to an application filed previously replaces, for the purpose of assigning the filing date of the application, the description and all drawings.
If the conditions referred to in paragraph 1 are not met^er, the application is deemed not to have been filed. In this case, the Agency shall notify the applicant of the reasons.
§ 9. Nothing in this Article shall limit the right recognized to an applicant under Article 4G, (1) or (2) of the Paris Convention to retain, as the date of a divisional application referred to in that Article, the date of the original application referred to in that Article and, where appropriate, the right of priority. »
Art. 11. An article 16bis, as follows, is inserted in the same law:
"Art. 16bis. Without prejudice to Article 16, § 3, a translation of the party referred to in Article 16, § 1^er, 3°, in a national language prescribed in accordance with the laws respecting the use of languages in administrative matters coordinated on July 18, 1966, must be delivered to the Office within the time specified by the King. »
Art. 12. In article 17, § 4, of the same law, in the last sentence, the word "is" is replaced by the words "may be".
Art. 13. Section 18 of the Act is replaced by the following:
“Art. 18. § 1^er. The patent application may only concern an invention or a plurality of inventions related to each other so that they form only one general inventive concept.
§ 2. Any request that does not meet the requirements of § 1^er shall, within the time prescribed by the King, be limited to a single invention or to a single general inventive concept within the meaning of § 1^er, be divided in such a way that the original patent application and the divisional application(s) each have a single invention or a single general inventive concept within the meaning of § 1^er.
§ 3. A limited or divisional application may only be filed for items that do not extend beyond the content of the original application as filed. To the extent that this requirement is met, the limited or divisional application is considered to be filed on the date of filing of the original application and, where applicable, is entitled to the priority of the original application.
§ 4. The applicant may, on its own initiative, limit its application or file a divisional application within the time limit prescribed by the King.
If the patent application has been the subject of a search report mentioning a failure of the invention unit within the meaning of § 1^er and in the event that the applicant does not make a limitation of his application or a filing of a divisional application in accordance with the results of the search report, the granted patent will be limited to the claims for which the search report has been prepared.
§ 5. Any patent application that has not been limited or divided in accordance with the provisions of this Article may be rejected. »
Art. 14. In section 19 of the Act, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. The applicant for a patent, who wishes to avail himself of the priority of an earlier filing under the Paris Convention or the TRIPS agreement, is required to file a priority statement and a copy of the earlier application under the conditions and deadlines set by the King.
In the priority statement, the patent applicant may also, instead of producing a copy of the previous patent application, refer to a database designated by the King.
Without prejudice to the application of international agreements in this area, the prior filing may include a first regular filing of a patent application in one of the States parties to the Paris Convention or the World Trade Organization, a regional patent application or an international patent application.
The right of priority attached to a first deposit made in a State that is not a party to the Paris Convention may not be claimed, under the conditions and with effects equivalent to those provided for in this Convention, only to the extent that this State grants, under an international agreement, on the basis of a first filing of a Belgian patent application, a European patent application or an international patent application, a priority right that is subject to those conditions »;
2° it is inserted a paragraph 1^erbis, as follows:
« § 1^erbis. The applicant for a Belgian patent will also enjoy a priority equivalent to that mentioned in § 1^er if it produces, under the conditions and deadlines set by the King, a priority statement based on an earlier Belgian patent application and a copy of the previous Belgian application.
During the declaration of priority, a patent applicant may also refer to a database designated by the King. »;
Paragraph 7 is replaced by the following:
Ҥ 7. Except in the cases determined by the King, a correction of a priority claim or the addition of such a claim to a request (the "subsequent request") is authorized if:
1° a request for this purpose shall be submitted to the Agency in accordance with the conditions established by the King;
2° the request shall be submitted within the time limit set by the King;
3° the date of filing of the subsequent application is not after the expiry date of the priority period, calculated from the date of filing of the oldest application whose priority is claimed.
The request may not be fully or partially rejected without giving the requesting party the opportunity to submit, within a time limit set by the King, comments on the refusal envisaged. »;
4° it is inserted a paragraph 8, which reads as follows:
Ҥ 8. Where an application (the "subsequent application") that claimed or could have claimed the priority of an earlier application has a filing date after the expiry date of the priority period, but within the time limit set by the King, the Agency shall restore the priority right if:
1° a request for this purpose shall be submitted to the Agency in accordance with the conditions established by the King;
2° the request shall be submitted within the time limit set by the King;
3° the request sets out the reasons why the priority period has not been met;
4° the Agency finds that, within the priority period, the subsequent application was not filed although the due diligence required in this case was exercised.
The request may not be fully or partially rejected without giving the requesting party the opportunity to submit, within a time limit set by the King, comments on the refusal envisaged. »;
5° it is inserted a paragraph 9, which reads as follows:
Ҥ 9. Where a copy of an earlier application as a priority is not submitted to the Agency within the time limit prescribed by the King, the Agency shall restore the priority right if:
1° a request for this effect shall be submitted to the Agency in accordance with the conditions prescribed by the King;
2° the request shall be submitted within the time prescribed by the King for the delivery of the copy of the previous application;
3° the Agency finds that, within the time prescribed by the King, the copy to be provided has been requested from the Office to which the previous application has been filed;
4° a copy of the previous application shall be submitted within the time prescribed by the King.
The request may not be fully or partially rejected without giving the requesting party the opportunity to submit, within a time limit set by the King, comments on the refusal envisaged. »;
6° it is inserted a paragraph 10, which reads as follows:
“§ 10. The filing of a request under §§ 7, 8 and 9 shall result in the payment of the tax fixed by the King. »
Art. 15. In section 20 of the Act, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. Where the patent application meets the conditions set out in section 16 but not the other legal or regulatory conditions, the Agency shall notify the applicant, giving the applicant the opportunity to regularize the application and make representations within the time limit set by the King and with the payment of the prescribed fee.
Upon expiry of this period, the unregulated application is deemed to be withdrawn.
Where it is not satisfied within the time limit set by the King on a condition related to a claim of priority, the claim of priority is, subject to the provisions of Article 19, §§ 7 to 10, deemed non-existent. »;
2° it is inserted a paragraph 1^erbis as follows:
« § 1^erbis. Where the patent application meets the conditions set out in section 16 but not the other legal or regulatory conditions, the applicant may, even if it has not been invited by the Agency in accordance with § 1^erto proceed with the regularization of the application as long as the patent has not been granted and with the payment of the prescribed regularization tax. »;
3° it is inserted a paragraph 1^erter, as follows:
« § 1^erter. Where the applicant has not paid the filing fee for the application referred to in section 15, § 2, the Agency shall invite the applicant to pay the tax and a surtax within the time limit set by the King. Upon expiry of this period, the application for which the tax referred to in section 15, §2, remained unpaid shall be deemed to have been withdrawn. »
Art. 16. In section 21 of the Act, as amended by the Acts of 6 March 2007 and 22 December 2008, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. The patent application may be amended during the proceedings before the Agency or before the courts, in accordance with the law and the enforcement orders. »;
2° paragraph 1^er current paragraph 1^erbis;
3° in paragraph 3, the words “§ 1^er are replaced by the words “§ 1^erbis
Paragraph 5 is replaced by the following:
Ҥ 5. The Agency shall communicate the research report and written opinion to the applicant who may file a new wording of the claims and abstraction. The applicant who filed a new claim drafting amends the description to align it with the new claims.
The applicant may also file written comments on the written opinion provided to the applicant.
The patent application may not be amended in such a way that its object extends beyond the content of the application as filed.
The King sets out the conditions and deadlines for amending the claims, description and abstract referred to in this paragraph. »;
5° in paragraph 7, the words "or the law of 4 August 1955" are repealed;
6° in paragraph 8, the words "in the procedure for granting a foreign patent" are replaced by the words "in the procedure for granting a Belgian or foreign, national or regional patent or in the procedure for an international patent application".
Art. 17. In section 22 of the Act, as amended by the Acts of 6 March 2007 and 22 December 2008, the following amendments are made:
Paragraph 2 is replaced by the following:
Ҥ2. The order shall be issued as soon as possible after the expiry of a period of eighteen months from the date of filing of the patent application or, if the priority right has been claimed in accordance with the provisions of Article 19, from the earliest priority date specified in the declaration of priority.
Upon request of the applicant, the order shall be issued before the expiry of the period specified in paragraph 1^er upon completion of the formalities prescribed for the grant of the patent. »;
2° it is inserted a paragraph 2bis, as follows:
“§ 2bis. Without prejudice to paragraph 2 and to the provisions of the Act of 10 January 1955, the Agency shall make the application for a patent accessible to the public at the expiry of the period of eighteen months referred to in § 2, paragraph 1^er. The King sets out the conditions under which the application is made accessible to the public.
An applicant who does not wish to make his application accessible to the public shall file with the Agency, within the time limit set by the King, an application for withdrawal of his application. The King sets out the modalities for this request.
Upon request to the Agency by the applicant or, where appropriate, by the Usufruitar, the application shall be made publicly available before the time limit referred to in § 2, paragraph 1^er. Mention that the application is made publicly available is made on the Register. »;
3° in paragraph 3, the words "art. 21, § 1^er are replaced by the words "Article 21, § 1^erbis
4° in paragraph 4 the words "law provisions" are replaced by the words "law provisions" and the words "and August 4, 1955" are repealed.
Art. 18. In section 23 of the Act, as amended by the Act of 22 December 2008, the following amendments are made:
1° in paragraph 1^erthe words "and the law of August 4, 1955" are repealed;
2° Paragraph 2 is replaced by the following:
"The file of the granted patent includes all information and documents relating to the patent grant procedure, useful for public information and, in particular, the ministerial order for the grant of the patent, the description of the invention, the claims, the possible initial versions of the claims, the drawings to which the description refers, the search report on the invention, the written opinion as well as, if any, the comments, the new wording »;
3° Article 23 is supplemented by a paragraph written as follows:
"The King determines the documents that, by derogation from the preceding paragraph, are excluded from the file subject to public inspection. In the file, items excluded from the public inspection are kept separately. »
Art. 19. In Article 25, § 2, of the Act, paragraph 1^er is replaced by the following:
"The Agency shall ensure the full publication of the patents granted and the amended patents pursuant to 48 bis, 48ter and 49. The bibliographical data, a summary and a drawing characteristic of these patents are published in the Collection and made available at the Office's headquarters and on the Agency's website. »
Art. 20. In section 26 of the Act, the following amendments are made:
1° in paragraph 1^er, the words "the content of" are replaced by the word "thes";
2° a paragraph written as follows is inserted between subparagraphs 1^er and 2:
"For the determination of the extent of protection conferred by the patent, it is duly taken into account any element equivalent to an element specified in the claims. »
Art. 21. Section 29 of the Act is replaced by the following:
“Art. 29. § 1^er. A reasonable allowance, as determined under the circumstances, may be required by the patent applicant of any third party who has made the invention, between the date on which the patent application was made available to the public under section 22, § 2bis, or to be copied to the third party concerned, and the date on which the patent was granted, an operation which, after that period, would be prohibited under the patent. The extent of the protection so conferred on the patent application is determined by the claims that have been the subject of the publication referred to in Article 22, § 2bis, or, if any, by the most recent claims filed with the Agency contained in the copy handed over to the third party.
§ 2. Copy to the interested third party referred to in § 1^er must be certified by the Agency.
§ 3. If there is no agreement between the parties, the compensation is fixed by the court. It may also impose the measures it considers necessary to safeguard the interests of the patent applicant and the third party.
§ 4. After the grant of the patent, the third party may request the restitution of the compensation paid to the extent that the final drafting of the claims has restricted the scope of the claims that have served as the basis for fixing the compensation.
§ 5. Compensation action and restitution action are prescribed by five years, respectively, from the termination of the operation of the invention and the date of grant of the patent.
§ 6. The usufruct of the patent application may avail itself of the provisions of this Article. »
Art. 22. In article 33, paragraph 2, paragraph 2, of the same law, the words "by registered letter to the post" are replaced by the words "by registered mail".
Art. 23. Section 35 of the Act is replaced by the following:
“Art. 35. § 1^er. It is established, with the Federal Public Service with intellectual property in its responsibilities, a Compulsory Licensing Commission which is responsible for carrying out the tasks assigned to it by sections 33, 36 and 37.
The Commission is composed of ten members appointed by the Minister.
Eight members are nominated on a proposal from industry, agriculture, trade, small and medium-sized industrial enterprises and consumers.
The organizations referred to in the previous paragraph are designated by the Minister.
Two members are appointed from the members of the Intellectual Property Council. They remain members of the Commission for the duration of their term of office within the Commission, regardless of their membership of the Commission.
The term of membership of the Commission is six years. He's renewable.
The Commission is chaired by one of its members, designated by the Minister for a term of three years renewable.
Opinions are adopted by consensus. In the absence of consensus, the opinion takes the different opinions.
The King determines how the Commission operates and organizes.
The Commission develops its rules of procedure. This comes into force after approval by the Minister.
§ 2. When the Minister receives a request for the granting of a mandatory licence, the Minister shall designate one or more qualified officers to the Commission, selected from the federal public service officials with intellectual property in his or her powers.
The Commission defines the mission of the agents referred to in paragraph 1^er and sets out the modalities under which these officers report on their mission. The Commission shall specify the conditions for the transmission of the documents referred to in paragraph 4 to ensure the protection of confidential information.
Agents commissioned by the Minister are competent to collect any information, receive any written or oral testimony or testimony they consider necessary to carry out their mission.
In performing their duties, these officers may:
1° with a prior warning of not less than five working days or without a prior warning if they have reason to believe that there is a risk of the destruction of parts useful to the instruction of the mandatory licence application, enter, during the usual hours of opening or working, in offices, premises, workshops, buildings, adjacent courses and enclosures, whose access is necessary to the completion of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° to collect samples, according to the modes and conditions determined by the King;
4° seize, against receipt, the documents referred to in item 2 that are necessary for the fulfilment of their mission;
5° to commit experts whose mission they determine, according to the conditions determined by the King.
In the absence of confirmation by the Chairperson of the Commission within fifteen days, the seizure shall be lifted in full right. The person in whose hands the objects are seized may be incorporated as a judicial guardian.
The Chairperson of the Commission may release the seizure that he has confirmed, if any, upon the request of the owner of the seized objects addressed to the Commission.
By means of a preliminary warning of at least five working days or without prior warning if they have reason to believe that there is a risk of the destruction of documents useful to the instruction of the mandatory licence application, commissioned agents may visit the inhabited premises with the prior authorization of the President of the Commercial Court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
In carrying out their mission, they may require the assistance of the police services.
The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
§ 3. The officers commissioned for this purpose submit their reports to the Commission. The Commission shall only issue its notice after hearing the patent holder and the person who requires or has obtained the mandatory licence. Such persons may be assisted or represented either by a lawyer or by a person whom the Commission specifically associates in each case. The Commission also hears the experts and the persons it considers useful to question. It may require commissioned officers to complete additional information and provide a supplementary report.
At least one month before the date of its meeting, the Commission shall notify the persons to be heard at the meeting by registered mail. In the event of an emergency, the deadline is reduced by half.
§ 4. All voluntary impediments or impediments to the exercise of the mission entrusted by this Act to the commissioned officers shall be punished by imprisonment from eight days to three months and a fine from 500 to 20,000 euros or only one of these penalties.
Any false statement is punishable by the same penalties.
These include:
1° refuse to provide the information or to disclose the requested documents;
2° knowingly provide inaccurate information or documents.
The provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to offences covered by this paragraph.
§ 5. The Commission ' s operating costs are borne by the federal Public Service budget that has intellectual property in its functions. »
Art. 24. In Article 40, § 1^erof the same Act, as amended by the Act of 6 March 2007, paragraphs 1^er to 3 are replaced by the following:
« § 1^er. In order to maintain its current status, any patent application or patent shall result in the payment of annual fees. Annual fees are due at the beginning of the third year from the date of filing of the patent application and at the beginning of each of the following years.
The payment of the annual fee expires on the last day of the month of the anniversary of the filing of the patent application. The annual fee may not be validly paid more than six months prior to maturity.
When the payment of the annual tax has not been made on its maturity date, the tax may still be paid, increased by a surtax, within a grace period of six months from the expiry of the annual tax. »
Art. 25. Section 41 of the Act is repealed.
Art. 26. Section 42 of the Act is repealed.
Art. 27. In section 44 of the Act, subsection 3 is replaced by the following:
“§3. Notification to § 1^er be accompanied:
1° a copy of the act of assignment or of the official document recognizing the transfer of rights, either of an extract of that act or of that document sufficient to determine the transfer, or of a certificate of assignment signed by the parties;
2° proof of payment of the tax.
The King sets out the content and terms of this notification and sets out the amount of the tax that must be paid before the registration of the copy, extract or attestation to the Register. »
Art. 28. In section 45, § 4, of the same law, the word "report" is replaced by the word "certification".
Art. 29. In section 47, paragraph 2, of the Act, the words "certified in conformity" are deleted.
Art. 30. The title of Section 6 of Chapter II of the Act is replaced by the following:
"SECTION 6. Nullity, renunciation and revocation of the invention patent".
Art. 31. In section 6 of chapter II of the Act, an article 48bis is inserted as follows:
« § 1^er. The holder of a patent may at any time waive it, in whole or in part, by a written and signed statement addressed to the Minister. The declaration of renunciation is registered in the Register.
The patent may not be amended by a waiver in such a way that its object extends beyond the content of the application as filed.
The patent may not be amended by waiver so as to extend the protection it confers under the latest version of the patent.
§ 2. The total waiver results in the loss of the patent on the date of registration of the declaration to the Register. However, if, on that date, the annual fee has not yet been paid, the patent's termination is effective at the end of the period covered by the last annual fee paid.
§ 3. The waiver may be limited to one or more patent claims or to a portion of a claim or claims. The partial waiver shall result in the loss, on the date of the registration of the declaration to the Register, of the rights attached to the claim or to the claims or to the parties to which it is waived.
§ 4. The patent waiver declaration must be accompanied by:
(1) the claim(s) or part thereof to which the patentee declares to give up;
2° where applicable, the full text of the amended claim(s) that the patent holder wishes to maintain and, where appropriate, the description and drawings as amended.
The declaration of renunciation may only apply to one patent.
§ 5. In case of co-ownership, the waiver, total or partial, must be made by all co-owners.
§ 6. If the rights of usufruct, gage or licence are registered in the Register, the patent may be waived, in whole or in part, only with the consent of the rights holders.
§ 7. It may not be waived, in whole or in part, to a patent that is the subject of a claim of ownership, a patent entered or a patent that has been the subject of a mandatory licensing decision.
§ 8. The provisions of this article shall apply by analogy to the patent application.
§ 9. Any waiver made in violation of §§ 6 and 7 shall be void of full right.
§ 10. The King shall determine the terms and conditions of the waiver procedure with the Agency and shall determine the amount and method of payment of the royalty that may be collected by the Agency. »
Art. 32. In section 6 of chapter II of the Act, an article 48ter is inserted as follows:
"Art. 48ter. § 1^er. The holder of a patent may at any time revoke the patent, in whole or in part, by a written and signed statement to the Minister, without prejudice to the civil liability of the registrant. The revocation declaration is registered in the Register.
If the revocation is made in a court proceeding relating to the patent, the licensee shall file, in advance, to the Agency the declaration referred to in paragraph 1^er. The amended patent serves as the basis for judicial proceedings.
The patent may not be amended by way of a revocation in such a way that its object extends beyond the content of the application as filed.
The patent may not be amended by way of a revocation so as to extend the protection it confers under the latest version of the patent.
§ 2. The partial revocation is made by a modification of the claims and, where applicable, of the description or drawings. Revocation may be limited to one or more patent claims or to a portion of a claim or claims. The partial revocation shall result in the termination, on the date of filing of the patent application, of the rights attached to the claim or to the claims, or to the parties thereof, which are the subject of the revocation.
§ 3. The partial revocation of the patent shall be accompanied by:
(1) the claim(s) or part thereof that the patent holder declares to revoke;
2° where applicable, the full text of the amended claim(s) that the patent holder wishes to maintain and, where appropriate, the description and drawings as amended.
The revocation of the patent is enforceable to third parties from the date of its registration to the Register, without prejudice to the responsibility of the registrant.
The declaration of revocation may only apply to one patent.
§ 4. In the event of co-ownership, revocation, total or partial, shall be carried out by all co-owners.
§ 5. If the rights of usufruct, gage or licence have been entered in the Register, the patent may only be revoked, in whole or in part, with the consent of the holders of these rights.
§ 6. A patent that is the subject of a claim of ownership, seizure or decision of compulsory licensing cannot be revoked in whole or in part.
§ 7. The provisions of this article shall apply by analogy to the patent application.
§ 8. Any revocation made in violation of §§ 5 and 6 is null and void of full right.
§ 9. The King shall determine the terms and conditions of the revocation procedure to the Agency and shall determine the amount and method of payment of the royalty that may be collected by the Agency. »
Art. 33. In section 49 of the Act, the following amendments are made:
Paragraph 2 is replaced by the following:
“§2. If the grounds for invalidity affect the patent only in part, the patent is limited by a corresponding modification of the claims and, where applicable, of the description and drawings, and is declared partially null. This amendment is included in the Register. »;
2° Article 49 is supplemented by a paragraph 3 as follows:
Ҥ3. The patent may not be amended by way of a cancellation in such a way that its object extends beyond the content of the application as filed.
The patent may not be amended by way of a cancellation so as to extend the protection it confers under the latest version of the patent. »
Art. 34. Section 50 of the Act is replaced by the following:
"Art. 50. § 1^er. The total or partial cancellation of a patent and the total or partial revocation of a patent under section 48ter have a retroactive effect on the date of filing of the patent application.
§ 2. Subject to the provisions relating to remedies for damage caused by the negligence or bad faith of the proprietor of the patent or to the enrichment without cause, the retroactive effect of the invalidity and revocation of the patent shall not affect:
1° the counterfeit decisions having acquired force of thing tried and executed prior to the nullity decision or registration in the Register of the voluntary revocation of the patent;
2° the contracts entered into prior to the decision to cancel the patent or to register the Register of Revocation, to the extent that they were executed prior to that decision; However, the restitution of amounts paid under the contract, to the extent that the circumstances warrant it, may be claimed for fairness reasons. »
Art. 35. Article 51, § 1^erthe same law shall be replaced by the following:
« § 1^er. When a patent is cancelled, in whole or in part, by a judgment or judgment or by an arbitral award, the decision to cancel has, in respect of all, the authority of the thing judged subject to the third opposition.
The revocation decisions passed in force of evidence are entered in the Register. »
Art. 36. Section 55 of the Act, as amended by the Acts of 9 March 1995 and 12 June 2001, is replaced by the following:
"Art. 55. § 1^er. Subject to the provisions of § 2 and § 3, paragraph 1^erin respect of invention patents, no one is required to be represented before the Agency.
§ 2. Individuals and legal entities who wish to act before the Board in respect of invention patents through a third party must have recourse to an authorized agent.
§ 3. Physical and legal persons who have no domicile or establishment in a Member State of the European Union must, in order to act before the Office in the matter of invention patents, be represented by an authorized representative and act through it.
Physical and legal persons referred to in paragraph 1^er, may act themselves before the Agency for the following procedures:
1° the filing of an application for the purpose of granting a filing date;
2° the payment of a tax;
3° the filing of a copy of an earlier application;
4° the issue of a receipt or notification of the Agency in a procedure under 1°, 2° and 3°.
§ 4. Every person may pay annual taxes.
§ 5. A lawyer registered in the College's table or on the list of interns, a lawyer and a patent attorney with the nationality of a member state of the European Union and authorized to practise this profession in a member state of the European Union, as well as any lawyer authorized to practise this profession in Belgium under a law or international convention, may act as an authorized agent with the Agency.
The King shall take the measures that, in the matter of free service of an agent before the Agency, are necessary for the fulfilment of the obligations arising from the Treaty on the European Union or the provisions enacted under this Treaty.
§ 6. Individuals and legal persons who have their domicile or an effective institution in a Member State of the European Union may act before the Agency in respect of invention patents through one of their employees; that employee, who must have a power, is not required to be an authorized agent. The King may provide for whether and under what conditions an employee of a legal person referred to in this paragraph may also act for other legal persons who have an effective establishment in a Member State of the European Union and have economic ties with it.
§ 7. Special provisions concerning the representation of common parties may be established by the King. »
Art. 37. Section 57 of the Act is repealed.
Art. 38. Section 58 of the Act is replaced by the following:
"Art. 58. § 1^er. When one or more of the conditions set out in sections 55 and 56 are not met, the Agency shall notify the person who has completed the act and offer the opportunity to fulfil that or these conditions and to make his or her observations within the time limit set by the King.
§ 2. Where one or more of the conditions provided for in Articles 55 and 56 are not fulfilled within the time prescribed by the King in accordance with § 1^er, the act accomplished is null and void.
§ 3. Unduly paid taxes are refunded. »
Art. 39. In section 60 of the Act, as amended by the Acts of 12 June 2001 and 27 December 2005, the following amendments are made:
1° to § 1^er2° is repealed;
2° § 3 is repealed;
3° § 2bis becomes § 3.
Art. 40. In section 68, paragraph 2, of the Act, the words "by registered letter to the post" are replaced by the words "by registered mail".
Art. 41. In section 70 of the Act, the following amendments are made:
1st paragraph 1^er is supplemented by the following sentence:
"The register is also available on the website designated by the King";
2° paragraphs 2 and 3 are repealed.
Art. 42. In chapter IV of the Act, an article 70bis is inserted as follows:
"Art. 70bis. § 1^er. Where an applicant or a patentee has not observed a time limit for the performance of an act in a proceeding before the Agency, and that this non-compliance has as a direct result the loss of patent or patent rights, the Agency shall restore the rights of the applicant or the holder in respect of the patent or patent application if:
1° a request for this effect shall be submitted to the Agency in accordance with the conditions and within the time limit set by the King;
2° the uncompleted act must be done within the time limit of the application referred to in 1°;
3° the request sets out the grounds for which the time limit has not been observed;
4° the Agency finds that the failure to observe the time limit has occurred although the due diligence required in this case has been exercised.
The request for restoration is registered in the Register.
A statement or other evidence in support of the reasons referred to in 3° shall be provided to the Agency within a time limit set by the King.
The request for restoration is processed only after the restoration tax prescribed for this request has been paid.
§ 2. A request made under § 1^er may not be wholly or partially rejected without giving the requesting party the opportunity to submit, within the time limit set by the King, its observations on the refusal envisaged.
The decision to restore or refuse is entered in the Register.
§ 3. Whoever, between the time of the loss of rights provided for in Article 40, § 2, and the time when the restoration of these rights comes out of its effect in accordance with § 2 of this Article, has in good faith used in Belgium the invention subject of the patent or taken to that end the necessary measures may continue to use this invention for the purposes of its own business. The right recognized by this paragraph may only be transmitted to the company to which it is attached. Is reserved the application of the law of 10 January 1955.
The preceding paragraph is also applicable where the protection provided for in section 29, paragraph 1^er, takes effect as a result of the restoration of the patent application.
§ 4. The request for restoration in the rights referred to in § 1^er is not admissible for:
1° the deadlines referred to in § 1^er;
2° the deadlines referred to in Article 19, §§ 7 to 9.
The King shall determine, if any, other time limits than those mentioned in the preceding paragraph, for which the request for restoration is not admissible. »
Art. 43. Section 71, § 3, paragraph 2, of the Act is repealed.
Art. 44. In chapter IV of the Act, an article 72bis is inserted as follows:
"Art. 72bis. Unless otherwise provided, where, under Article 44, § 3, paragraph 1^er, or section 47, paragraph 2, a copy of an original document or an excerpt from it is requested, the Agency may, in the event of a legitimate doubt about the authenticity of the copy delivered or sent from the original document or the extract from it, direct inquiry to the person who issued the original document.
If this inquiry results in a disproportionate burden on the Agency or on the person who issued the original document or if direct contact with the person who issued the document is difficult, the Agency may invite the person concerned, by registered mail with acknowledgement of receipt, to produce the original document. In this recommended consignment, the reason for the submission of the original document is set out. As long as the original document is not produced, the procedure in which this document is delivered is suspended. »
Art. 45. Section 74 of the Act is replaced by the following:
"Art. 74. The Registrars of Courts and Tribunals who have rendered a judgment or judgment under this Act shall, at no later than one month after the date on which the judgment or judgment has been cast in force of the judgment or after the date on which the appeal has been filed or appealed. Reference is made to the fact that the decision was cast as a force of action or that it was struck by appeal or opposition.
The same obligation applies to arbitral tribunals. »
Art. 46. In Chapter IV of the Act, an article 74bis is inserted as follows:
"Art. 74bis. § 1^er. Any exploit of the meaning of a decision of complete or partial invalidity of a patent on the basis of section 49 shall be immediately communicated by the bailiff instrumenting the Agency.
§ 2. The Agency may request the Attorney General of the jurisdiction in which the decision was made if this decision may still be subject to opposition, appeal or appeal in cassation.
If the Attorney General confirms that an objection, appeal or appeal in cassation is no longer possible, the Agency shall, within one month of receipt of such confirmation, record the device of that decision in the patent file and mention an excerpt in the register. »
Art. 47. In the same Act, an article 74ter is inserted as follows:
"Art. 74ter. The King determines the terms and conditions under which citizens and businesses can communicate electronically with the Agency and transmit documents and acts in electronic form. »
CHAPTER 3. - Other amendments
Art. 48. In article 3 of the Act of 21 April 2007 on various provisions relating to the procedure for filing European patent applications and the effects of such applications and European patents in Belgium, a paragraph 1 is inserted.^erbis as follows:
« § 1^erbis. The restoration procedure referred to in section 70bis of the Act of 28 March 1984 on invention patents is applicable to the period prescribed in the preceding paragraph. »
Art. 49. In the same Act, an article 4/1 is inserted as follows:
"Art. 4/1. The Agency makes available the language engineering services allowing the automatic translation of patent information, through a website designated by the King, on which European patent applications and granted European patents can be consulted in the same conditions in all national languages.
The King may specify the terms and conditions for the provision of the relevant language engineering services. »
Art. 50. In Article 5 of the Act of 8 July 1977 approving the following international acts:
1. Convention on the Unification of Certain Elements of Invention Patent Law made in Strasbourg on 27 November 1963;
2. Patent Cooperation Treaty and Implementing Regulations, made in Washington on 19 June 1970;
3. Convention on the Grant of European Patents (European Patent Convention), Implementing Regulation and four Protocols, made in Munich on 5 October 1973;
4. European Patent Convention for the Common Market (Community Patent Agreement) and Implementing Regulations, made in Luxembourg on 15 December 1975,
paragraph 1^erbis as follows:
« § 1^erbis. The restoration procedure referred to in section 70bis of the Act of 28 March 1984 on invention patents is applicable to the period prescribed in the preceding paragraph. »
Art. 51. In the same Act, an article 5/1 is inserted as follows:
"Art. 5/1. The Agency makes available the language engineering services allowing the automatic translation of patent information, through a website designated by the King, on which European patent applications and granted European patents can be consulted in the same conditions in all national languages.
The King may specify the terms and conditions for the provision of the relevant language engineering services. »
CHAPTER 4. - Transitional and final provisions
Art. 52. § 1^er. Patent applications filed prior to the coming into force of this Act will be processed in accordance with the provisions applicable at the time of filing.
§ 2. This Act applies immediately to patents granted prior to its entry into force, but retains the rights acquired at the time of the coming into force of this Act.
§ 3. The provisions of sections 27, 29 and 44 shall apply to patents requested or granted prior to the entry into force of this Act.
Art. 53. With the exception of this section, the King shall determine the effective date of each of the provisions of this Act.
Promulgate this Act, order that it be put on the seal of the State and published in the Belgian Monitor.
Brussels, 10 January 2011.
Minister for Business and Simplification,
VAN QUICKENBORNE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
Session 2010/2011:
House of Representatives.
Documents. - Bill, 53-405 - No. 1.- Amendments, 53-405 n^bones 2 to 4. - Report, 53-405 - No. 5. - Text adopted by the Commission, 53-405 - No. 6. - Text adopted in plenary and transmitted to the Senate, 53-405 - No. 7.
Full report: 16 December 2010.
Senate.
Documents. - Project not referred to by the Senate, 5-610 - No. 1.