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Law No. 203 Of 19 April 2002 Modifying And Completing Law No. 64/1991 On Patents For Invention

Original Language Title:  LEGE nr. 203 din 19 aprilie 2002 pentru modificarea şi completarea Legii nr. 64/1991 privind brevetele de invenţie

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LEGE no. 203 203 of 19 April 2002 to amend and supplement Law no. 64/1991 on patents for invention
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 340 340 of 22 May 2002



The Romanian Parliament adopts this law + Article 1 Law no. 64/1991 on patents, published in the Official Gazette of Romania, Part I, no. 212 of 21 October 1991, as amended and supplemented, shall be amended and supplemented as follows: 1. Article 1 shall read as follows: "" Art. 1. -The rights to an invention are recognized and defended on the territory of Romania by granting a patent by the State Office for Inventions and Trademarks, under the conditions provided by law. The rights arising from the European patent are also recognized and defended, according to the law. " 2. Article 2 shall be repealed. 3. After Article 2, Article 2 ^ 1 is inserted as follows: "" Art. 2 2 ^ 1. -For the purposes of this law, the following terms and expressions shall be defined as follows: a) European patent-the patent granted under the European Patent Convention; b) patent application-the written request containing the express request for granting a patent; c) international application-the application for protection of an invention, registered under the Patent Cooperation Treaty; d) industrial property counselor-the person specialized in providing assistance in the field of industrial property (inventions, brands, drawings, models, etc.), which legally carries out this activity; e) the European Patent Convention-the European Patent Convention, concluded in Munich on 5 October 1973, with subsequent amendments and revisions; f) the Paris Convention-Convention for the Protection of Industrial Property of 20 March 1883, Paris, as revised and amended; g) description-presentation in writing of the invention; h) inventor-the person who created the invention; i) authorized trustee-the industrial property adviser, who may also have a representation quality in the proceedings before the State Office for Inventions and Trademarks; j) OSIM-State Office for Inventions and Trademarks; k) publication-dissemination of information in a publicly accessible way; l) applicant-natural or legal person who requests the granting of a patent; m) successor in rights-any natural or legal person who has been transmitted either the right to the granting of the patent or the rights arising from an invention patent issued; n) claim-the part of the patent covered by the requested protection and the content of which determines the extent of the protection; o) applicant-natural or legal person who requests the granting of a patent; p) successor in rights-any natural or legal person who has been transmitted either the right to the granting of the patent or the rights arising from an invention patent issued; q) the patent holder-the natural or legal person to whom the right conferred by the patent belongs; r) establishment-legal entity that operates legally; s) the person who exploits the invention-the natural or legal person who implements it legally. The person who exploits the invention may be identical to the holder of the patent. " 4. In Article 4, paragraph 2 shall read as follows: " If several people have created the same invention, independently of each other, the right to patent belongs to that which filed a patent application whose date of deposit is the oldest, and if a priority has been recognized, it belongs to the person of whose patent application has the earliest date of priority. " 5. in Article 4, after paragraph 2, paragraph 3 is inserted as follows: "" The provisions of para. 2 2 are applicable only if the documentation on the application or, as the case may be, that of the patent having the date of deposit or priority recognized the oldest has been published in accordance with the law. " 6. In Article 5, paragraph 5 shall read as follows: " In the cases provided in par. 1 lit. a) and in par. 2, if, within 60 days from the time the employee informed in writing the unit on the drafting of the invention description, the patent application was not filed with the OSIM, in the absence of another convention between the parties, the right to grant the patent belongs to the employee, under the conditions provided in par. 1 lit. b). " 7. Article 6 shall read as follows: "" Art. 6. -Foreign natural or legal persons having their domicile or headquarters outside the territory of Romania benefit from the provisions of this law, under the conditions of international treaties and conventions on inventions, to which Romania is a party. " 8. Article 7 shall read as follows: "" Art. 7. -A patent can be granted for any invention having as its object a product or a process, in all technological fields, provided that it is new, involves an inventive activity and is susceptible to industrial application. Biotech inventions are patentable if they relate to: a) a biological material from the natural environment or produced by any technical process, even if before it was produced in kind; b) plants or animals, if the technical realization of the invention is not limited to a certain plant variety or to a particular breed of animals; c) a microbiological process or other technical process and a product, other than a variety of plants or a breed of animals, obtained in this way; d) an isolated element of 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 the structure of a natural element. " 9. Article 8 shall read as follows: "" Art. 8. -An invention is new if it is not contained in the stage of the technique. The stage of the technique includes all the knowledge that has become accessible to the public by a written or oral description, by use or by any other means, until the date of the deposit of the patent application or the recognized priority. The stage of the technique also includes the content of the applications submitted to OSIM and international or European requests designating Romania, as they were submitted, which have a date of deposit or priority recognized, prior to that mentioned in par. 2, and which were published on or after that date according to the law. Provisions of para. 2 and 3 do not exclude the patentability of any substance or composition contained in the stage of the technique for its use in a method for the treatment of the human or animal body, through surgery or therapy, or within any method of diagnostic practice on the human or animal body, if its use in this method is not contained in the stage of the technique. The provisions of this article will not exclude the patentability of any substance or composition provided in par. 4, for any specific use in any method for the treatment of the human or animal body, by surgery or therapy, or in any diagnostic method practised on the human or animal body, if this use is not contained in the stage Technique. " 10. Article 8 (1) shall be inserted after Article 8: "" Art. 8 8 ^ 1. -The disclosure of the invention is not taken into account if it has intervened within the 6-month period before the date of deposit of the patent application and whether it results directly or indirectly as a result of: a) an obvious abuse of the applicant or; b) the fact that the applicant has exhibited the invention in an official or officially recognized international exhibition, organized in the states parties to the international treaties and conventions to which Romania is a party. " 11. Article 9 shall read as follows: "" Art. 9. -An invention is considered as implying an inventive activity if, for a specialized person, it does not obviously result from the knowledge contained in the stage of the technique. The patent applications referred to in art. 8 8 para. 3, although they are part of the stage of the technique, they are not considered for the appreciation of inventive activity. " 12. Article 10 shall read as follows: "" Art. 10. -An invention is susceptible to industrial application if its object can be achieved or used at least in one of the industrial fields, including agriculture. " 13. Article 11 shall be repealed. 14. Article 12 shall read as follows: "" Art. 12. -No patent is granted, according to this law, for: a) inventions whose commercial exploitation is contrary to public order or good morals, including those harmful to the health and life of persons, animals or plants and which are likely to bring serious touches to the environment, provided that this exclusion does not only depend on the fact that exploitation is prohibited by a legal provision; b) plant varieties and animal breeds; c) biological essential processes for the production of plants or animals; d) inventions having as object the human body in the various stages of its formation and development, as well as the simple discovery of one of its elements, including the sequence or partial sequence of a gene. " 15. Article 13 shall read as follows: "" Art. 13. -Not considered inventions within the meaning of art. 7 7 in particular: a) discoveries, scientific theories and mathematical methods; b) aesthetic creations; c) plans, principles and methods in the exercise of mental activities, in terms of games or in the field of economic activities, as well as computer programs; d) information presentations. Provisions of para. 1 do not exclude the patentability of the object of the invention or that of the provided activities only to the extent that the patent application or the patent for the invention relates to such objects of the invention or to the activities themselves. " 16. Article 14 shall read as follows: "" Art. 14. -The patent application containing the applicant's identification data, accompanied by the description of the invention, of claims and, if applicable, of explanatory drawings, all written in Romanian, shall be submitted to OSIM and constitute the deposit National regulatory. The patent application must contain indications that allow the identity of the inventor to be established. The filing of the patent application may be made by the person entitled to the grant of the patent, personally or in any manner prescribed by the implementing regulation of this law. In all proceedings before the OSIM the applicant is considered to be the person entitled to the grant of the patent. The patent application, accompanied by the documents provided in par. 1, shall be submitted, at the choice of the applicant, on paper or in another form and by means of transmission accepted by the OSIM and provided for in the implementing regulation of this law. " 17. Article 15 shall read as follows: "" Art. 15. -The deposit date is the date on which the following were recorded at OSIM: a) an application containing the explicit or implicit request of the granting of a patent; b) indications enabling the identity of the applicant to be established or allowing him to be contacted by the OSIM; c) a part that, at first glance, appears to be a description of the invention. If a part of the description is missing, for the purpose of assigning the date of deposit, it can then be submitted, the date of deposit being the date on which this party was filed and to which the fee for the registration of this part was paid. If the missing part of the description provided in par. 1 lit. c), subsequently submitted, is withdrawn, the date of deposit will be the date on which the requirements referred to in par. 1. The conditions of subsequent filing and those of withdrawal of the missing part of the description, which was subsequently filed according to par. 2, are provided by the regulation for the application of this law. If the patent application does not contain a party that, at first glance, appear to be a description, in the application for patent can be made reference, in Romanian, to an application previously submitted to OSIM that replaces the description, in compliance with the provisions of the regulation for the application of this law, for the purpose of granting In its absence, the application will not be treated as a patent application. The patent application shall be entered in the National Register of Patent Applications filed. Until the release of the data from this register in the Official Industrial Property Bulletin, they are not public, according to the special law. Claims and drawings regarding the invention can also be filed within two months from the date of filing of the patent application, with the payment of the legal fee. In the case of international patent application or European patent application, the date of deposit is the date resulting from the international treaties and conventions to which Romania is a party and this date is entered in the National Register of Applications for patent filed. " 18. Article 16 shall read as follows: "" Art. 16. -If the provisions of art. 14 14 or art. 15 15 para. 8, the warehouse of the application produces the effects of a regulatory national Provisions of para. 1 applies and if, for justified reasons, foreign natural or legal persons have filed the description, claims and drawings in a foreign language, provided that, within two months from the registration of the application or, as the case may be, from the date the opening of the national phase, to submit to OSIM a Romanian-compliant translation of these documents and to pay the legal fee. It shall be deemed to satisfy the conditions of the form and content of an application in this a) international applications meeting the conditions regarding the form and content of the Patent Cooperation Treaty, adopted by the Washington Diplomatic Conference on 19 June 1970, ratified by the Decree of the Council of State No. 81 of 2 March 1979, as amended; b) international requests that meet the conditions of form and content provided by the Patent Cooperation Treaty and required by the OSIM or the European Patent Office, when acting for OSIM, after beginning processing or examining them. Any other requirements regarding the form and content of the application provided for in the Implementing Regulation of this Law will also be observed. Content of an application that corresponds to the content of an international application form and the accepted one, according to par. 4, must be presented on a prescribed application form, provided for in the implementing regulation of this law. " 19. Article 17 shall read as follows: "" Art. 17. -The warehouse of the application confers a right of priority, starting from its date or from the date of priority invoked and recognized, against any other deposit regarding the same invention having a deposit or subsequent priority date, if they are met the provisions of 14 14 para. 1 1 or art. 15 15 para. 8 8. " 20. Article 18 shall read as follows: "" Art. 18. -The invention must be exposed in description, claims and drawings sufficiently clear, complete and correct from a scientific and technical point of view, so that a specialist person in the field can achieve it. The claims are the subject of the requested protection and must be clear, concise and be supported by the description of the invention. If the invention refers to a microorganism to which the public did not have access, the conditions provided in par. 1 are fulfilled only if the applicant proves by an act that, prior to the date of filing of the patent application for invention or that of the recognised priority, the micro-organism was the subject of a deposit with a deposit authority international. " 21. Article 19 shall read as follows: "" Art. 19. -The patent application must refer only to a single invention or to a group of inventions related to each other in such a manner as to form a single inventive general concept. Patent application that does not meet the condition provided in par. 1 may be divided by the applicant, on his own initiative or at the request of the OSIM, until a decision on the patent application is taken. An application resulting from the division may be submitted only for items not exceeding the content of the original application. Applications resulting from the division meeting this requirement shall be deemed to have been deposited at the date of the deposit of the original application and shall benefit from the priority rights invoked therein. ' 22. Article 20 shall read as follows: "" Art. 20. -The person or his successor in rights who has filed a patent application, utility model or utility certificate in a State party to the Paris Convention for the Protection of Industrial Property or for a Member of The World Trade Organization shall benefit, in order to make the filing of a patent application for the same invention, of a right of priority over a period of 12 months calculated from the date of deposit of the first application. In a patent application, the invocation of multiple, recognized priorities is admitted, provided that the term provided in par. 1, as well as the unity of the invention provided in art. 19. In the situation provided in par. 2 the 12-month priority period shall be calculated from the date of the earliest recognised priority. The priority can also be recognised for a claim claiming or could have claimed the priority of a previous application at a registration date after the expiry date of the priority deadline, but no more than two months from the date. expiry of this period, with payment of the legal fee, if a) an express request is made in this regard, under the conditions laid down by the regulation for the application of this law; b) the application is made within c) the application shall state the reasons why the priority period has not been met d) OSIM finds that the subsequent application was not filed within the priority deadline, although the due diligence was exercised, or that failure to comply with the deadline was not intentional. If the applicant for the application for a patent invokes a right of priority belonging to another person, for the recognition of the priority it is necessary to submit to OSIM an authorization from the transferor, showing that the applicant is entitled to invoke the first deposit priority. The time limit for the submission of the authorisation shall not exceed 3 months after the priority has been invoked Non-recognition of priority for failure to meet the provisions of para. 4 4 and 6 shall be decided by the OSIM within 6 months from the date of deposit. " 23. Article 21 shall read as follows: "" Art. 21. -The priority raised in a patent application, following the exposure of the object of the invention in an official or officially recognised international exhibition, held in the Member States of the Paris Convention or the World Organisation a Trade, may be recognised from the date of its introduction into the exhibition. Provisions of paragraph 1 applies only if a patent application has been filed within 6 months from the date of introduction of the object of the invention in the exhibition. The 6-month deadline will not extend the priority period provided for in art. 20 20 para. 1 1 and 3. " 24. In Article 22, paragraphs 2 and 3 shall read as follows: " If the applicant has failed to invoke the priority once with the filing of the application, the invocation may be made, under the conditions provided for by the implementing regulation of this law, at the latest within two months from this date, with payment legal fee. The priority acts shall be submitted within a maximum of 3 months from the date of deposit or, as the case may be, from the date of opening of the national phase, and when OSIM requests a Romanian-compliant translation of the previous application, the provisions the regulation implementing this law. " 25. in Article 22, after paragraph 4, paragraph 5 is inserted as follows: " Non-recognition of priority for failure to comply with art. 20 20 and 21 shall be decided by the OSIM, within 6 months from the date of deposit or from the date of the opening of the national phase for an international application. " 26. Article 23 shall read as follows: "" Art. 23. -The patent applications submitted by national means, for which the national regulatory deposit was constituted, shall be published immediately after the expiry of a period of 18 months from the date of deposit or, if a priority has been recognised, from the date of this priority, except those provided for in art. 44 44 para. 2. Patent applications submitted under the Patent Cooperation Treaty shall be published immediately after the expiry of a period of 6 months after the opening of the national phase. At the request of the natural or legal person entitled the publication may be made within a shorter period than the one provided in par. 1 and 2, under the terms of the regulation implementing this law. If the decision to grant the patent is made before the publication of the application, it will be published with the publication of the mention of the award decision, in compliance with the provisions of art. 26 26 para. 2 2, art. 29 29 para. 4 4 and 5 and art. 44 44 para. 2. The patent applications provided for in art. 44 44 para. 2 will be published within 3 months from the date of removal from the state secret regime. The publication of the application shall be mentioned in the Official Industrial Property Bulletin, under the conditions provided for by the implementing regulation of this Law. " 27. Article 24 shall be repealed. 28. In Article 25, paragraph 2 shall read as follows: "If the documentation report has not been made public with the request, it will be published later, under the conditions provided for by the implementing regulation of this law." 29. Article 26 shall read as follows: "" Art. 26. -The examination of the patent application may be required at the date of filing of the patent application or, as the case may be, at the opening of the national phase or within 30 months of one of these dates. For patent applications for invention that have state secret regime the request for examination may be required at the date of deposit of the application or within 3 months after the termination of this regime, but no later than 30 months before the expiry of the duration protection provided for in art. 32 32. " 30. Article 27 shall read as follows: "" Art. 27. -The OSIM shall examine whether the patent applications meet the requirements laid down in art. 6 6, art. 14-16 and 18, the priorities provided in art. 17 and those invoked in accordance with the provisions of art. 20-22, the unit of invention provided for in Article 19 and if the object of the application is patentable within the meaning of 7-10 7-10, 12 and 13. " 31. Article 28 shall read as follows: "" Art. 28. -OSIM shall have the right to ask the applicant for the clarifications and acts it considers necessary in relation to the identity of the applicant or the inventor, with the national regulatory deposit constituted or with the fulfilment of the patent conditions. In all procedures regarding the application or patent of the invention OSIM may transmit notifications to the applicant, to the holder or to the interested person, and they may transmit to OSIM communications, in compliance with the deadlines provided by the application of this law, these terms can be extended by OSIM on request, with the payment of a legal fee. The absence of notification does not absolve the applicant, holder or person interested in the obligation to comply with the provisions The applicant will submit to OSIM all public documents in connection with his invention, including copies of patents granted in other states. At the request of the OSIM or on his initiative the applicant or his successor in rights, until a decision is made, may modify the claims, drawings or description, without however that it exceed the limits of the disclosure of the invention on the date filing of the patent application. " 32. Article 29 shall read as follows: "" Art. 29. -OSIM shall act by the Specialized Examination Commission, on the basis of the examination report of the patent application, within 18 months from the date on which the examination was requested, the granting of the patent or the rejection of the application for patent or its object. Except for patent applications which have been withdrawn by the applicant or which are declared as withdrawn. OSIM decides to reject in whole or in part the patent application in the following situations: a) the object of the application is not patented within the meaning of art. 7-10 7-10, 12 and 13; b) the patent application does not meet the conditions laid down in art. 6 6, art. 14 14 para. 1 1, art. 15 15 para. 4 4 and 5, art. 16 16 para. 2 2 and 4, art. 18 18 and 43; c) exceeding the opening period of the national phase for international applications; d) non-payment of registration fees, submission of claims or drawings or missing part of the description, opening of the national phase, publication, examination or, as the case may be, the designation fee, in the amount and at the deadlines provided by law and the implementing regulation of the present law; e) the extension of the 12-month period from the date on which the applications referred to in 7 7 were considered withdrawn; f) the application for patent of invention according to art. 62 62 para. 2 lit. c); g) the applicant, other than the inventor, did not prove, within the period provided for in art. 30 30 para. 2, that it is entitled to grant the patent; h) it was not requested to examine the patent application for the granting of the patent, within the deadlines provided in art. 26. The mention of the decision granting the patent or rejecting the patent application shall be published in the Official Industrial Property Bulletin, within 60 days, except for the deadline provided for in art. 30 30 para. 2. With the publication of the mention of the decision granting the patent, the description, claims and drawings of the patented invention are made available to the public, in compliance with the conditions provided by the regulation for the application of this law. The decision granting the patent or rejecting the patent application will take effect from the date of publication of its claim in the Official Industrial Property Bulletin, under the conditions laid down by the Implementing Regulation. this law. In the case of decisions granting the patent for a state secret regime, after the termination of this regime, the provisions of par. 4 4 and art. 23 23 para. 4. OSIM takes note of the withdrawal of the patent application if the applicant requests the withdrawal in writing, expressly. They are declared as withdrawn the patent applications for invention in the following situations: a) the inventors were not declared within 18 months from the date of the request of the examination in substance; b) the applicant did not comply with the OSIM notifications, after establishing the admissible content of the claims, according to the provisions of art. 18 18 para. 1, on bringing the form of claims, description and drawings in accordance with this content; c) the request was the basis for invoking the priority in a subsequent application submitted by national or for which the national phase was opened in Romania; d) the patent application is in the situation provided in art. 62 62 para. 2 lit. b); e) the international patent applications for which OSIM has the status of a receiver's office and which do not meet the conditions laid down in the Patent Cooperation Treaty; f) the applicant has not submitted the claims and drawings within the period provided for in art. 15 15 para. 7. All decisions taken within the OSIM are motivated, shall be entered in the National Register of applications for patent filed and shall be communicated within the time limits and under the conditions provided by the implementing regulation of this law. The same register shall also include the particulars of the withdrawn patent applications or the statements of declarations that the patent applications are considered to be withdrawn, which shall also be communicated. In the event of the death of the interested party or in the case of dissolution of the legal person, the procedure shall be interrupted until the communication to the OSIM of the successor in rights, under the conditions provided by the implementing regulation When judicial proceedings are instituted in respect of the right to patent and the right to grant the patent, the patent procedure shall be suspended until the court decision remains final. The interested person will communicate this decision to OSIM. " 33. Article 30 shall read as follows: "" Art. 30. -The OSIM may proceed ex officio to the revocation of its decisions for failure to meet the conditions provided for in this law, as well as for any material error, until their communication. If OSIM finds on the basis of thorough evidence that the applicant, other than the inventor, is not entitled to grant the patent, for the revocation provided in par. 1 1, may proceed to postpone the communication of the decision taken, without exceeding a period of 6 months from its date. During this period, the thorough evidence on the right to the granting of the patent will be communicated to OSIM. " 34. Article 31 shall read as follows: "" Art. 31. -The patent is issued by the Director General of OSIM, pursuant to the decision to grant it. For the European patent OSIM certifies the validity of the patent in Romania, according to the law. The date of issue of the invention patent is the date on which the mention of the release is published in the Official Industrial Property Bulletin. Patents are entered in the National Register of Invention Patents. If the conditions laid down by law are met, the patent for European invention shall be entered in the National Register of patents. " 35. Article 32 shall read as follows: "" Art. 32. -The duration of protection of a patent is 20 years, starting from the date of deposit. For the European patent the duration referred to in par. 1 flows from the date of establishment of the regulatory deposit of the patent application, according to the European Patent Convention. For medicinal products or patented phytosanitary products, additional protection may be obtained under the law. " 36. Article 33 shall read as follows: "" Art. 33. -For an invention from a patent application that cannot be applied without prejudice to an invention from a previous patent application and patentee, OSIM will make a decision granting only after notifying all interested parties about the patent application. to the relationship between inventions. " 37. Article 34 shall read as follows: "" Art. 34. -The patent confers to the holder or an exclusive right of exploitation for the entire duration of its protection. It shall be prohibited to carry out without the consent of the holder a) manufacture, use, offer for sale, sale or import for use, offer for sale or sale, if the object of the patent is a product; b) the use of the process, as well as the use, offering for sale, sale or import for these purposes of the product obtained directly by the patented process, if the object of the patent is a process. The extent of protection conferred by the patent is determined by the content of the claims. At the same time the description and drawings of the invention serve to interpret For determining the extent of the protection conferred by the patent will take into account any element equivalent to an element specified in the claims. The extent of the protection conferred by the patent application will be determined by the claims contained in the application published in accordance with art. 23. The patent granted or fined in the revocation or cancellation procedures in part will retroactively determine the protection conferred by the patent application, according to the provisions of par. 2 2, to the extent that it has not been extended. The protection conferred by a patent relating to a biological material having specific characteristics extends to any derived material, on the basis of the patented one, by reproduction or multiplication, in identical or differentiated form and with the same characteristics. Protection conferred by a patent on a procedure allowing the production of a biological material having specific characteristics extends to the biological material directly obtained by this process and to any other biological material derived from the biological material directly obtained by that process and any other material obtained from the biological material directly obtained by reproduction or multiplication, in identical or differentiated form and having the same characteristics. The protection conferred by a patent on a product containing a genetic information or consisting of a genetic information extends to any other material in which the product is incorporated and in which the genetic information is contained and exercise function, except for the human body at different stages of formation or development. Protection provided in par. 7-9 does not extend to the biological material obtained by the reproduction or multiplication of a biological material marketed or offered for sale on the territory of Romania by the patent holder or with its consent, when the reproduction or the multiplication necessarily results from the use for which the biological material has been placed on the market, provided that the material obtained has not been subsequently used for other reproductions or multiplications. '; 38. Article 35 shall read as follows: "" Art. 35. -Starting from the date of publication of the patent application in accordance with the provisions of art. 23 the application provisionally provides the applicant for the protection conferred according to the provisions of art. 34 34, except in cases where the patent application has been rejected, withdrawn or declared as withdrawn. " 39. Article 36 shall be repealed. 40. Article 37 shall read as follows: "" Art. 37. -It does not constitute the violation of the rights provided 34 34 and 35: a) the use of inventions in the construction and operation of terrestrial vehicles, air, and on board ships or devices for their operation, belonging to the Member States of international treaties and conventions concerning the inventions, to which Romania is a party, when these vehicles or ships enter the territory of Romania, temporarily or accidentally, provided that this use is made exclusively for the needs of vehicles or ships; b) carrying out any of the acts provided for in art. 34 34 para. 2 by a person who applied the object of the patent or that of the patent application, as published, or took effective and serious measures in order to produce or use it in good faith on the territory of Romania, independently of its holder, and before the establishment of a national regulatory deposit on the invention or before the date from which the recognised priority period flows. In this case the invention can still be used by that person, in the existing volume at the date of deposit or the recognized priority, and the right to use can only be transmitted with the patrimony of the person or with a fraction of the patrimony affected by the use of invention c) carrying out any of the acts provided for in art. 34 34 para. 2 exclusively in private and non-commercial purposes; production or, as the case may be, the use of invention exclusively in private and non-commercial purposes; d) marketing or offering for sale on the territory of Romania of those copies of the product, object of the invention, which were previously sold by the patent holder or with his express agreement; e) use in good faith or taking effective and serious measures to use the invention by third parties in the time between the revocation of the patent holder and the revalidation of the patent. In this case the invention can still be used by that person, in the volume existing on the date of publication of the mention of the revalidation, and the right to use can only be transmitted with the patrimony of the person using the invention or with a fraction of the patrimony which is affected by the exploitation f) the exploitation by third parties of the invention or part thereof to whose protection has been given up. Any person who, in good faith, uses his invention has made effective and serious preparations for the use of the invention, without this use constituting a violation of the patent application or European patent in the original translation, perhaps, after the corrected translation has an effect, to continue the use of the invention in its enterprise or for its needs, without payment and without exceeding the existing volume on the date on which the initial translation took effect. " 41. in Article 38, after paragraph 2, paragraph 3 is inserted as follows: " At the express request of the inventor, his name and surname shall not be published; this request shall be subject to payment of the legal fee. 42. Article 39 shall read as follows: "" Art. 39. -For inventions created and realized under the conditions of art. 5 5 para. 1 with the contrary clause and, respectively, of art. 5 5 para. 2 the inventor benefits from the property rights established on the basis of contract concluded with the applicant or, as the case may be, with the patent holder The patrimonial rights shall be determined according to the economic and/or social effects resulting from the exploitation of the patent or according to the economic contribution of the invention. " 43. Article 40 shall read as follows: "" Art. 40. -In the case of the revocation of rights of the patent holder, provided in art. 47 47 para. 2, the holder may request to OSIM the revalidation of the patent for justified reasons, within 6 months from the date of publication of the decay. Within 60 days of registration OSIM shall decide upon the request for revalidation, subject to payment of the legal fee. The mention of the revalidation of the patent shall be published in the Official Industrial Property Bulletin within 30 days of the final and irrevocable stay of the judgment. " 44. In Article 41, paragraphs 1, 5 and 6 shall read as follows: " The holder may waive, in whole or in part, the patent, on the basis of a written statement registered with the OSIM. ................................................................. To the inventions provided in art. 44 44 para. 2 may be waived only with the agreement of the institutions that have assigned them the character of state The waiver shall be registered with the OSIM in the National Register of patents and shall take effect from the date of its publication in the Official Industrial Property Bulletin. " 45. Article 42 shall read as follows: "" Art. 42. -The patent can be cancelled in whole or in part, at the request of an interested person, when it is found that the conditions for the existence of a patent invention were not met at the time of registration of the patent application. The request for cancellation can be made during the entire period of validity of the patent and is judged by the Bucharest Court. The decisions of the Bucharest Court can be appealed to the Bucharest Court of Appeal within 30 days of communication. The decisions of the Bucharest Court of Appeal can be appealed to the Supreme Court of Justice within 30 days of communication. The decision to cancel, in whole or in part, final and irrevocable, shall be registered with OSIM by the person concerned. The mention of the cancellation shall be published in the Official Industrial Property Bulletin within 60 days of the registration of the judgment at OSIM. " 46. Article 43 shall read as follows: "" Art. 43. -In proceedings before the OSIM the applicant for the application, the transferee or the holder or another person concerned may be represented by a trustee, on the basis of a proxy registered with the OSIM, under the conditions and within the time limits laid down by the application of this law. For the aforementioned persons, who do not have their domicile or headquarters on the territory of Romania, the representation by trustee is mandatory, with the following exceptions, cases in which it can be acted on its own a) the registration of a patent application, for the purpose of assigning the date of deposit; b) payment of a fee; c) submission of a copy of a previous application; d) release of an OSIM notification on any procedure referred to in lett. a), b) and c). The maintenance fee in force can be paid by any person. In the case of revocation of the prosecutor's office the signature of the trustee does not have the effect of the signature of the applicant, the holder or the interested persons 47. Article 44 shall read as follows: "" Art. 44. -The invention subject to the patent application filed with the OSIM cannot be disclosed without the consent of the applicant, until its publication, and has the character established by the special law until publication. It is state secret the content of the patent applications created on the territory of Romania, which are assigned this regime by the institutions in law for national defense and for the preservation of national security, with the notification the applicant and the granting of a material compensation to him by the institution which attributed the character of state secret. This character ceases only by judgment of the same institutions. OSIM shall retain the character assigned by the institutions in the documents submitted. 48. Article 45 shall read as follows: "" Art. 45. -The foreign exchange of inventions created by Romanian individuals on the territory of Romania is made only after the registration of the patent application for OSIM. In case of inventions provided in art. 44 44 para. 2 patenting abroad is done with the approval of the institutions that have assigned them the character of state secret. In order to patent abroad the inventions provided in par. 1 applicants or Romanian patent holders can benefit from financial support, according to the law. Patenting abroad of the inventions provided in par. 1 is brought to the attention of OSIM by the Romanian individuals who created them or by their successor in rights. For the registration of international applications for the patenting of inventions in other states, in accordance with the provisions of the Patent Cooperation Treaty, OSIM shall act as a receiver's office. " 49. In Article 46, paragraph 1 shall read as follows: "" Art. 46. -In the case of the invention for which a unit is entitled to the issuance of the patent, it is required to inform the inventor of the stage of examination of the patent application within the OSIM as well as the stage and results of the application invention. " 50. Article 47 shall read as follows: "" Art. 47. -The procedures carried out by OSIM regarding the patent applications and the patents provided for by this Law and its implementing regulation shall be subject to the duties, in the amounts and within the time limits laid down by law. For the entire term of validity of the invention patent the holder owes annually the maintenance fees in force of the patent. The non-payment of these fees attracts the revocation of the holder from the rights arising from the The revocation of the rightholder shall be registered in the National Register of Invention Patents and shall be published in the Official Industrial Property Bulletin. The maintenance fees in force can be paid and anticipated, under the conditions provided by the regulation for the application of this law, for a period that cannot exceed 4 years. Taxes due by foreign natural or legal persons shall be paid in foreign currency in the OSIM account. " 51. Article 47 shall be inserted after Article 47 (1) with the following contents: "" Art. 47 47 ^ 1. -The applicant or holder of the patent who for thorough reasons has not been able to comply with a term in proceedings before OSIM is reinstated in the previous situation, if he presents a reasoned request within two months after the end of the case that has prevented from acting, but not later than one year after the expiry of the non-compliance period. Provisions of paragraph 1 1 does not apply if the legal deadlines have not been complied with in the following situations: a) invoking priority according to art. 20-22 20-22; b) the submission of the translation of the description, claims or drawings, according to art. 16 16 para. 2. c) request of the examination in order to grant the patent, according to 26 26; d) payment of registration fees and of making a documentation report, according to art. 47 47 para. 1 1; e) registration of a request for revocation, according to art. 56 56; f) exceeding the term of division of a patent application, provided for in art. 19 19 para. 2 2; g) exceeding the deadline for filing a new patent application, according to art. 62 62 para. 2 lit. b); h) payment of the maintenance fees in force of the patent. Also, the provisions of par. 1 does not apply in the situations provided in art. 29 29 para. 2 lit. c), d) and f), para. 7 lit. d) and e) and art. 55. The request for reinstatement will be subject to the payment of a fee, in the amount provided by law for the registration of an appeal, except for the case provided in art. 29 29 para. 7 lit. b), for which no charges are levied. " 52. Article 48 shall read as follows: "" Art. 48. -The right to patent, the right to grant of the patent and the rights arising from the patent may be transmitted in whole or in part. Transmission can be made by assignment or by license, exclusive or non-exclusive, or by legal or testamentary succession. The transmission produces effects to third parties only as of the date of publication in the Official Industrial Property Bulletin of the mention of the transmission registered with OSIM. " 53. Article 49 shall read as follows: "" Art. 49. -At the request of any interested person the Bucharest Court may grant a mandatory license at the expiration of a period of 4 years from the date of filing of the patent application or a term of 3 years from the granting of the patent, counting the term that expires at the latest. Provisions of para. 1 applies only if the invention has not been applied or has been insufficiently applied on the territory of Romania, and the patent holder cannot justify his inaction and if no agreement has been reached with him on the conditions and modalities commercial use of invention. The Bucharest Court will authorize the mandatory license if it will appreciate, based on the circumstances, that, although the interested person has made all efforts, no agreement has been reached within a reasonable time. The beneficiary of the compulsory licence may also be the Government or third party authorised by him Apart from the reasons provided in par. 2, a compulsory license may be authorized by the Bucharest Court: a) in situations of national emergency and, mainly, in the interest of national defence or national security or when public interests require it; b) in other extreme emergencies; c) in situations of public use for non-commercial purposes. Granting the mandatory license for one of the reasons provided in par. 5 does not require that the conditions referred to in paragraph 2. However the licensee will notify the applicant or the patent holder about the authorization given by the court, as soon as possible. In situations of public use for non-commercial purposes, the Government or third parties authorized by it, when they know or have demonstrable reasons to know whether a valid invention patent is or will be used by the Government, respectively by third parties, will notify the holder of the patent about its use in a reasonable time. In cases where a patent cannot be exploited without prejudice to the rights conferred by another patent, granted for a patent application whose national regulatory filing date is prior, a compulsory licence for the exploitation of the patent. the subsequent patent can only be authorised if the following additional conditions are met: a) the invention claimed in the subsequent patent implies an important technological progress, of substantial economic interest in relation to the invention claimed in the previous patent; b) the holder of the previous patent is entitled to a mutual license, on reasonable terms for the use of the invention claimed in the subsequent patent; c) the authorized use in relation to the previous patent is non-communicable, unless a compulsory licence is also transmitted. " 54. After Article 49, Articles 49 ^ 1-49 ^ 4 are inserted with the following contents: "" Art. 49 49 ^ 1. -The compulsory licenses are non-exclusive and are granted by the Bucharest Court, under conditions determined in terms of their extent and duration, as well as the level of remuneration due to the holder of the right, established in relation to the value commercial of the licenses granted. Compulsory licences will be mainly authorised for the supply of the market. The extent and duration of compulsory licences will be limited to the purposes for which they have been authorised. In the case of semiconductor technology inventions the license will be granted only for non-commercial public purposes or to remedy a practice established as anti-competitive, as a result of a judicial or administrative. If an improver cannot exploit a new plant variety patent without prejudice to a prior invention patent, it may apply for a compulsory licence for the invention protected by this patent. Where the holder of a patent relating to a biotechnological invention cannot exploit it without prejudice to a previous patent of a new plant variety, he may apply for a compulsory licence for the exploitation of the new variety. of the plant, protected by patent. Where a compulsory licence is authorised to remedy an anti-competitive practice, the provisions of art. 49 49 para. 3-5. Art. 49 ^ 2. -The compulsory licence shall be non-transferable only together with the part of the undertaking or the trade fund benefiting from such use. Provisions of para. 1 shall not apply where a compulsory licence has been granted in accordance with art. 49. Art. 49 ^ 3. -At the reasoned request, presented by the interested person, the Bucharest Court may withdraw the compulsory license, when the circumstances that led to its granting ceased to exist, provided that the legitimate interests of the person who has acquired it will be protected in an appropriate manner. The licence will not be withdrawn if the circumstances which led to it are likely to occur again. The decisions of the Bucharest Tribunal regarding the authorization of the use of a mandatory license, as well as those regarding the remuneration provided for in relation to its use, will be appealed to the Bucharest Court of Appeal within 15 days of communication. Art. 49 ^ 4. -The final and irrevocable decisions on granting or, as the case may be, the withdrawal of the compulsory licence shall be communicated by the person concerned to the OSIM, who register them in the National Register of patent applications submitted or in The national register of patents and publishes the mention of these decisions in the Official Industrial Property Bulletin within one month of communication. " 55. Articles 50 to 54 shall be repealed. 56. Article 55 shall read as follows: "" Art. 55. -The decisions of the OSIM can be challenged to it by interested pesons, within 3 months of communication. The appeal shall be resolved within 3 months of its registration with the OSIM by a review panel in the OSIM Department of Appeals, in the first instance. Appeals having as their object only the correction of material errors or omissions are not subject to payment of taxes. The provisions relating to the jurisdictional duties of the review committees in the Department of Appeals shall be supplemented by the provisions of the Code of Civil Procedure, as well as with any other legal provisions, insofar as by this Law it is not otherwise ordered. " 57. Article 56 shall read as follows: "" Art. 56. -Any interested person has the right to formulate in writing and reasoned, to OSIM, a request for revocation against the decision granting the patent, within 6 months of its publication, if the decision was taken without respect. provisions of Article 7 7-10 and art. 12 12, 13 and 18. The appeal or, as the case may be, the request for revocation will be settled, within 3 months from its registration with the OSIM, by a review panel in the Department of Calls of the OSIM. " 58. Article 56 (1) shall be inserted after Article 56: "" Art. 56 56 ^ 1. -Failure to comply with one or more of the form of an application may not constitute grounds for revocation of the award of the patent or the cancellation of the patent, in whole or in part, unless it is the result of fraudulent intent. A patent may not be revoked or cancelled, in whole or in part, without the holder having the opportunity to submit comments on revocation or cancellation and to bring within a reasonable time the amendments or rectifications permitted by law and law. the implementing regulation of this Law. ' 59. Article 57 shall read as follows: "" Art. 57. -The decision of the Commission for review, motivated, shall be communicated to the parties within 15 days of the ruling and may be appealed to the Bucharest Court within 30 days of the communication. Within 15 days of communication the decisions of the Bucharest Tribunal can be appealed with appeal to the Bucharest Court of Appeal. The decisions granting the patent, taken by the Review Commission, and the judgments given by the courts, communicated to the OSIM by the person concerned, shall be operated in the national registers and shall be published in the Official Bulletin. of Industrial Property within 60 days of the date on which they remained final and irrevocable. OSIM operates in the national registers the changes made as a result of final and irrevocable court decisions and publishes them in the Official Industrial Property Bulletin within 60 days from the date of their registration at the OSIM by the person concerned. " 60. Article 58 shall read as follows: "" Art. 58. -Appropriation without right, in any way, the quality of inventor constitutes a crime and is punishable by imprisonment from 6 months to 2 years or with a fine from 50,000,000 lei to 100,000,000 lei. " 61. In Article 59, paragraphs 1 and 3 shall read as follows: " It constitutes the crime of counterfeiting, for the purposes of this law, the manufacture, use or entry into circulation without right of the object of a patent or any other violation of the rights conferred according to art. 34 34 para. 1, if these violations were committed after the date of publication of the patent application, and shall be punished with imprisonment from 3 months to 2 years or with a fine from 100,000,000 lei to 300,000,000 lei. .................................................................. For damages caused the holder is entitled to compensation, according to the common law, and may ask the competent court to order the confiscation measure or, as the case may be, the destruction of counterfeit products. These provisions also apply to materials and equipment that have served directly to the offence of counterfeiting. " 62. Articles 59 ^ 1 and 59 ^ 2 shall be inserted after Article 59: "" Art. 59 59 ^ 1. -If, before the date of publication of the patent application, the facts provided in art. 59 59 para. 1 continues to be committed and after the summons, the court, on request, can order the termination of their commission until the final and irrevocable stay of the OSIM ruling. This measure will be able to be ordered with payment by the applicant of a bail set by the court. Art. 59 ^ 2. -In case of violation of the right of the holder of a patent, provided in art. 34 34 para. 2 lit. b), the burden of proof in determining that the process used to obtain an identical product is different from the patented process incumba to the person presumed to have violated this right. In application of the provisions of 1 any identical product that has been produced without the consent of the patent holder will be considered until proven otherwise to have been obtained by the proprietary process in at least one of the following circumstances: a) if the product obtained by the patented process is new; b) if there is a substantial likelihood that the identical product was obtained by that process and the patent holder could not, despite reasonable efforts, determine what process was actually used. At the presentation of the evidence of the infringement by the patent holder, the legitimate interests related to the manufacturing secrets and the trade secrets of the person presumed to have violated the rights of the holder shall be taken into account. " 63. Article 60 shall read as follows: "" Art. 60. -Disclosure, by the OSIM staff, as well as by persons carrying out work in relation to the inventions, of the data contained in the patent applications, until their publication, constitutes a criminal offence and is punishable by imprisonment from 3 months at 2 years or with a fine from 15,000,000 lei to 50,000,000 lei. OSIM responds to the inventor for the damages brought as a result of the commission of the crime provided in par. 1 1. " 64. Article 61 shall read as follows: "" Art. 61. -Disputes about the quality of inventor, patent holder or those with respect to other rights born of the invention patent, including the inventor's patrimonial rights, from the assignment and license contracts, or those. relating to non-compliance with the provisions of 5 5 para. 6 6, art. 39 and 46 are the jurisdiction of the courts. The interested person will communicate to OSIM the court decision within 30 days from the date on which it remained final and irrevocable, to be entered in the National Register of patent applications submitted or in the Register. national patent of invention and published in the Official Industrial Property Bulletin. In the absence of publication in the Official Industrial Property Bulletin the ruling is not opposable to third parties. " 65. After Article 61, Articles 61 ^ 1 and 61 ^ 2 are inserted with the following contents: "" Art. 61 61 ^ 1. -The patent holder may request the court: a) the ordering of precautionary measures, when there is a risk of violation of rights arising from a patent and whether this breach risks causing irreparable damage or if there is a risk of destruction of evidence; b) ordering after the release of the customs release of measures regarding the cessation of acts of violation of the rights arising from the patent, committed by a third person on the occasion of the introduction into the commercial circuit of important goods, involving a touch of these rights. The court will be able to order that the author of the violation of rights arising from the patent inform the patent holder of the identity of the third parties who participated in the production and distribution of the goods in question, as well as the distribution The precautionary measures will be able to be ordered with payment by the complainant of a bail set by the court. The provisions of common law shall apply to the ordering of precautionary measures The court will be able to claim the complainant to provide any evidence of which it has, in order to prove that it is the holder of the infringing patent or of a patent whose infringement is unavoidable. Article 61 ^ 2. -The customs authorities may order, either ex officio or at the request of the patent holder, the suspension of customs duty on the import, export or placement under a suspension customs procedure of goods covered by art. 59 59 para. 1. The customs powers with regard to ensuring the border enforcement of patent rights belong to the General Directorate of Customs, according to the law. " 66. Article 62 shall read as follows: "" Art. 62. -If a court ruling finds that a person other than the one appearing in the patent is entitled to the grant of the patent, OSIM shall issue the patent to the entitled person and publish the change. the holder. If, before the granting by the OSIM of the patent, by a court decision it is found that the right to the patent belongs to a person other than the applicant, the person to whom this right was recognized may, within 3 months from the date of final and irrevocable stay of the judgment and under the conditions provided for by the implementing regulation of this Law: a) continue in the place of the applicant the procedure regarding the patent application submitted as for an own request; b) to submit a new patent application for the same invention. For items that do not extend the content of the initial application submitted in compliance with the 19 19, the original application is declared by OSIM as being considered withdrawn from the date of deposit of the new application; c) request the rejection of the application. 67. Article 62 shall be inserted after Article 62, with the following contents: "" Art. 62 62 ^ 1. -At the request of the court, OSIM is obliged to submit the documents, documents and information necessary to judge the case with which it was invested, recovering these acts in the end. The citation in court will be done only for this purpose. " 68. Article 63 shall read as follows: "" Art. 63. -OSIM is the specialized body of the central public administration subordinated to the Government, with unique authority on the territory of Romania in the field of industrial property protection, in accordance with the law and with the provisions of conventions international treaties to which the Romanian state is a party. " 69. Article 64 shall read as follows: "" Art. 64. -In the field of OSIM inventions it has the following a) coordinate industrial property policy in Romania; b) register, publish and examine the patent applications for the invention, in order to grant and issue the patent; c) is the depositary of the National Register of patent applications submitted and of the National Register of patents of invention in which the data on patent and patent applications are entered; d) is the office of the receiver for the patent applications of international registered invention by Romanian applicants, in accordance with the provisions of the Treaty of cooperation in the field of patents; e) administer, preserve and develop, through international exchanges, the national collection of invention descriptions and realize the computer database in the field of inventions, on any kind of information support; f) performs, on request, technical information services from the descriptions of Romanian and foreign inventions and from official publications of industrial property; g) attest and authorise advisors in the field of industrial property, keep records of them in the national register whose depositary is and periodically publish data from this register; h) maintains relations with similar governmental and intergovernmental organizations and specialized international organizations to which the Romanian state is a party; i) organize training courses for the training and improvement of specialists in this field; j) periodically publishes and publishes in the Official Industrial Property Bulletin data on patent applications and patents. " 70. Article 65 shall read as follows: "" Art. 65. -Patent applications for invention registered with OSIM under the terms of Law no. 62/1974, for which an admission or rejection decision has not been made, shall be resolved according to the provisions of this law. " 71. In Article 66, paragraph 1 shall read as follows: "" Art. 66. -Patents of invention, including those of improvement, granted before the entry into force of this law and valid on the territory of Romania have the duration of protection provided in art. 32 32. " 72. In Article 66, after paragraph 1, a new paragraph is inserted, with the following contents: " For the entire duration of validity of the perfecting patent the exploitation of the invention will be made in accordance with the provisions of art. 49 49 para. 8 8. " 73. After Article 66, Article 66 ^ 1 is inserted as follows: "" Art. 66 66 ^ 1. -The patents in force represent intangible assets and are registered in the patrimony of the holder, the legal person. " 74. Article 68 shall read as follows: "" Art. 68. -The profit or income obtained by the actual application in the country by the holder or, as the case may be, by its licensees of a patented invention in Romania, including the manufacture of the product or, as the case may be, the application of the process, shall be exempt from tax in the first 5 years after the first application, calculated from the start date of the application and included during the validity period of the patent. The provisions of par. 1 benefits legal entities or individuals who exploit the invention, namely the holder of the patent applied. The income obtained by the holder of the patent by divesting it shall be exempt from tax. " 75. Article 69 shall be repealed. + Article 2 (1) The present law shall enter into force 3 months from the date of publication in the Official Gazette of Romania, Part I. (2) On the date of entry into force of this Law, the provisions art. 30 30 para. 2 4th indent of Law no. 146/1997 on stamp court fees, published in the Official Gazette of Romania, Part I, no. 173 173 of 29 July 1997, with subsequent amendments and completions, as well as any other provisions to the contrary. (3) Within 3 months from the publication of the present law in the Official Gazette of Romania, Part I, the Government will approve by decision the Implementing Regulation Law no. 64/1991 on patents of invention, with subsequent amendments and completions and with those brought by this law. ((4) Determination of the profit or income share obtained by the patent holder, provided for in art. 68 68 of Law no. 64/1991 , will be made by norms developed by the Ministry of Public Finance, at the proposal of OSIM, which is approved by Government decision within 90 days from the publication of this law in the Official Gazette of Romania, Part I. + Article 3 Law no. 64/1991 , with subsequent amendments and completions, including those brought by this law, will be republished in the Official Gazette of Romania, Part I, within 30 days of publication, giving the texts a new numbering. This law was adopted by the Senate at its meeting on March 11, 2002, in compliance with the provisions of art 74 74 para. (1) of the Romanian Constitution. SENATE PRESIDENT NICOLAE VACAROIU This law was adopted by the Chamber of Deputies at its meeting on March 19, 2002, in compliance with the provisions of 74 74 para. (1) of the Romanian Constitution. CHAMBER OF DEPUTIES PRESIDENT VALER DORNEANU ---------