Law No. 350 3 December 2007 On Utility Models

Original Language Title:  LEGE nr. 350 din 3 decembrie 2007 privind modelele de utilitate

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LAW no. 350 3 December 2007 (* updated *)

on utility models (applicable with effect from February 1, 2013 *)
Issued



PARLIAMENT

------------- *) The form of this enactment date to February 1, 2013 carried out by the Legal Department of the SC "Territorial Computing Centre" SA Piatra Neamt by including all amendments and supplements to the Law no.
76 of 24 May 2012. The contents of this document is not a document of official character is intended to inform users
Romanian Parliament adopts this law.

Chapter I General Provisions



Article 1


(1) The utility model protects, under this law, any technical invention, provided that they are new, going beyond mere professional skill and are capable of industrial application.


(2) are not considered inventions under par. (1), in particular:


A) discoveries, scientific theories and mathematical methods;


B) aesthetic creations;


C) schemes, rules and methods for performing mental activities, playing games or doing business, and programs for computers;


D) disclosures.


(3) Para. (2) does not exclude the protection of utility model objects or activities planned, only if the utility model application or utility model refers to such items or activities deemed itself.


(4) can not be protected as utility models:


A) inventions whose commercial exploitation is contrary to public policy or morality, including harmful to the health or life of humans, animals or plants or which are likely to seriously harm the environment, provided that this exception shall not depend only that exploitation is prohibited by a legal provision;


B) plant varieties and animal breeds;


C) inventions concerning a biological material;


D) inventions concerning a product consisting of a chemical or pharmaceutical substance;


E) inventions having as a process or method.


Article 2


Utility model rights belong to the inventor or his successor in title.

Article 3


(1) An invention is new if it is not contained in the art.


(2) The prior art includes all knowledge that has become available to the public through a written or oral description, by use or in any other way, until the filing of the utility model.


(3) The prior art also comprises the content of utility model applications, the patent applications filed at the State Office for Inventions and Trademarks, hereinafter called OSIM, and the effect of the applications in Romania, as they were submitted, which have a filing date earlier than that prescribed in para. (2) that were published on or after that date under the law.


(4) According to par. (2) and (3), disclosure of the invention is not considered if it occurred within 6 months before the date of filing of the utility model and resulting, directly or indirectly:


A) the applicant or his predecessor in title;
times

B) as a result of an obvious abuse of the applicant or his predecessor in title.


Article 4


An invention is susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

Article 5


(1) The registered utility model confers on its proprietor an exclusive right of exploitation of the invention throughout and to prohibit the following acts without his consent: manufacturing, using, offering for sale, selling or importing for use, offering for sale or selling the invention protected by utility model.


(2) The holder is also entitled to prevent all third parties not having his consent from supplying or offering to persons other than those entitled to exploit the invention protected by utility model means the embodiment Romania, relating to an essential element of the invention, the third party knows or, under the circumstances, should have known that those means are suitable and intended application invention.



(3) Para. (2) does not apply to staple commercial products, except the third party trying to determine committing acts that would infringe the exclusive right under par. (1).


(4) Where the essential elements of a utility model were taken from the description, drawings, experimental models, devices or equipment belonging to someone other than the owner, without consent, the granted protection can not be used against that people.


Article 6


(1) The rights conferred by a registered utility model shall not extend to acts referred to in art. 5 paragraph. (1) concerning the protected product, performed after the product has been marketed in a Member State of the European Union by the proprietor or with his consent.


(2) However, the rights conferred by a utility model extend to the acts referred to in art. 5 paragraph. (1) concerning the protected product, performed after the product has been marketed outside a Member State of the European Union by the proprietor or with his consent.


Article 7


(1) The term of a utility model is 6 years starting from the date of filing.


(2) The holder of the right may obtain, based on a written request filed with OSIM utility model protection renewal for a further period of 2 years, but not earlier than one year and not later than 6 months before the expiry of the period provided in par. (1).


(3) The holder of the right may obtain, based on a written request filed with OSIM renewal utility model protection for a second and final period of 2 years, but not earlier than one year and not later than six months before the expiry in para. (2).


(4) The utility model can not exceed 10 years from the filing date.


(5) The renewal fee may be paid until the expiry of the period provided in par. (1) or, where applicable, para. (2) times within 6 months from whichever, with an increase of 50% of the fee.


(6) The holder of the utility model may cumulatively pay for maintenance in force and renewal fees for the entire period of protection.


(7) The claim protection under paragraph renovation. (2) and (3) shall be published in the Official Bulletin of Industrial Property, hereinafter BOPI


Article 8


(1) The right to the utility model, the right to the utility model registration and the rights arising from the registration of the utility model may be transferred in whole or in part.


(2) The utility model may be subject to collateral or enforcement measures.


Article 9


(1) utility model protection shall lapse:


A) expiry;


B) failure to pay the renewal fees for such protection;


C) the proprietor has renounced registered utility model.


(2) termination of protection under par. (1) effective on the day following:


A) the date of expiry of the utility model, in the case of par. (1) a) and b);


B) communication of renunciation by the owner, in the case of par. (1) c).


(3) Where the renunciation under par. (1) c) refers only to parts of the utility model, it remains in force with regard to other parties. OSIM shall take note of the renunciation without examining whether the remaining parts of the utility model continues to meet the requirements of this law and whether the limitation is acceptable.


(4) The utility model is deemed not to have retroactive effect from the date of filing, if the patent is granted for an application:


A) claiming the priority of the utility model application; or


B) that was converted into a utility model application and the applicant did not expressly request the withdrawal of the patent application.




Chapter II Registration procedure. Publication and release certificate

Article 10


(1) utility model application shall be drafted in Romanian and filed with OSIM, at the applicant, on paper or in another form and by any means of transmission provided in the implementing rules of this law.


(2) The application includes:


A) identification of the applicant;


B) of the protection by utility model, accompanied by the title of the invention;


C) a description of the invention;


D) one or more claims;


E) any drawings referred to in the description or claims.



(3) The application for utility model contains information enabling the inventor's identity.


(4) If the applicant is not the same inventor, he must declare and prove, by a document filed with OSIM before a decision is made, it is entitled to register the utility model.


(5) In all proceedings before OSIM, the applicant is considered to be the person entitled to register the utility model.


(6) For each invention filed an application for utility model.


(7) The claims must clearly define the scope of the protection required, be concise and be supported by the description of the invention.


(8) shall be accompanied by a summary of the invention. The summary should contain a brief overview of the invention; it is only the technical information and can not be considered for other purposes, in particular for determining the scope of protection.


(9) Until the date of the registration of a utility model application changes are allowed to the extent that they do not extend the claim. Of amendments extending for can not result any rights.


Article 11


The invention must be disclosed in the application for utility model sufficiently clear and complete so that a person skilled in the art to be carried out.

Article 12


(1) Date of filing of the utility model is the date that were filed with OSIM:


A) an explicit or implicit, that a utility model is sought;


B) to permit the establishment of the applicant's identity or enabling contacted by OSIM;


C) a part which, at first glance, appear to be a description of the invention.


(2) Claims and drawings of the invention may also be submitted within two months from the filing date.


(3) If the requirements are not met in para. (1) a) and / or c), OSIM shall notify the applicant to remedy deficiencies and request them within two months from the date on which at least requirement in para. (1) b) has been satisfied.


(4) Date of filing of the utility model is the date it is filed with the documents that include the deficiencies reported in the notification under par. (3).


(5) If the mentioned deficiencies are not remedied within the time limit or if they relate to the requirement in para. (1) b) date of filing shall not be granted and the application for utility model is deemed not to have been filed.


Article 13


An application for utility model is equivalent to a regular national filing of the filing date granted under Art. 12 if the provisions of art. 10 para. (2).

Article 14


(1) An application for utility model may also result from a patent covering the same invention if the applicant submits an application for conversion:


A) the course of the examination of the patent application until the completion of technical preparations for publication of the decision to grant the patent or to reject the patent application;


B) within a period of 3 months from the date on which OSIM publishes the mention of a judgment annulling a patent final and irrevocable consequence of lack of inventive step.


(2) If the requirements laid down in para. (1) utility model application resulting from the conversion benefit from the same filing date and the priority right arising from the patent application.


(3) Transformation in para. (2) has no effect after a period of 10 years from the date of filing of the patent application.


(4) For a patent application converted into a utility model application, the examination procedure shall be continued if the applicant does not expressly require the withdrawal of the patent application.


(5) can be converted into utility model applications and European patent applications in the situations referred to in art. 135 of the European Patent Convention (EPC), adopted in Munich on 5 October 1973, to which Romania adhered by the Law no. 611/2002, with subsequent revisions, as provided in the implementing regulation of this law.


Article 15



(1) The applicant for a utility model may request, before a decision on registration, conversion of a patent application, as provided in the implementing regulation of this law.


(2) An application for patent, resulting in conditions provided in par. (1) benefit from the same filing date and the priority right arising from the utility model application.


(3) Converting an application for utility model patent application is not permitted if the utility model application resulting from the conversion of an application for patent, according to Art. 14.


Article 16


(1) A utility model application must relate to a single invention.


(2) The application for utility model which contains two or more inventions shall be divided by the applicant on his own initiative or at the request of OSIM, until a decision on that request.


(3) In case until a decision on the original application, the applicant fails to divide, by filing claims to define the protection of a single invention, the object of the initial application, OSIM shall declare the application to be withdrawn.


Article 17


(1) OSIM examines whether the application meets the utility model:


A) art. 10 para. (3) concerning the applicant's identity;


B) art. 10 para. (4) on the right to the utility model registration;


C) art. 10 para. (2) the content of the utility model application;


D) the conditions of deposit under Art. 12 and 13;


E) conditions for the recognition of priority;


F) conditions to a single invention, provided for in art. 16 para. (1).


(2) OSIM examines whether the invention to which the application:


A) is not excluded from protection by utility model, according to Art. 1 para. (2), or can not be protected under Art. 1 para. (4);


B) is disclosed according to Art. 11.


(3) OSIM shall not examine the object of the utility model in terms of meeting the conditions of new, exceeding the mere professional skill and industrial applicability.


Article 18


(1) All requests for utility model for which the conditions laid down in art. 17 para. (1) and (2) the utility model registration, OSIM shall, within 6 months from the filing date, a search report citing those documents taken into consideration as regards the conditions laid down in art. 1.


(2) For the search report, the applicant shall file with OSIM within two months from the filing date or, where applicable, the date of filing, proof of payment of the prescribed fee.


(3) It is prepares report for claims resulting from the processing of patent applications which have already been drawn up and a report published by OSIM.


(4) The search report together with copies of the quoted documents, the applicant shall be submitted together with the notification OSIM the applicant to submit proof of payment within two months of the publication fee and issue and maintain in force model utility for the first 6 years of protection. At the reasoned request of the applicant, this period may be extended once by two months.


(5) The applicant may amend the claims within the period specified in par. (4) by filing a new set of claims. In such cases, OSIM shall not conduct an additional search report a change.


(6) If within the period specified in par. (4) OSIM was not submitted proof of payment, the application is declared to be withdrawn.


(7) If the report has not been made public with the publication of the documentation referred to in art. 19 para. (8) is published afterwards, as provided in the implementing regulation of this law.


Article 19


(1) Decisions on utility model application shall be taken by a committee specialized examination of the Patent Directorate of OSIM, based on the report of examination of the application.



(2) OSIM decides the utility model registration if the conditions laid down in art. 17 para. (1) and (2) if the publication fee has been paid utility model, certificate issuing and maintaining existing utility model protection for the first 6 years.


(3) At the request of the applicant, the decision concerning the registration may be deferred, without exceeding a period of 18 months from the date of filing or the date on which it was filed, as provided by regulations of this law.


(4) OSIM decides the rejection of utility model registration in the following circumstances:


A) the invention, the object of the application is excluded from utility model protection under Art. 1 para. (2), or can not be protected under Art. 1 para. (4);


B) utility model application does not meet the provisions of art. 10 para. (1) and / or (2) times of par. (7) or Article. 11 times the art. 12;


C) the applicant has opened the national phase after the deadline provided for in art. 26 para. (1) or (2) as applicable;


D) the applicant, inventor, has not proved within the period prescribed in Art. 10 para. (4) that the entitlement to file utility model.


(5) shall be declared as deemed to be withdrawn applications for utility model in the following cases:


A) the inventors were not declared in accordance with Art. 10 para. (3) and (4);


B) demand was the basis of the priority claim in a subsequent application filed by the national route or that entered the national phase in Romania;


C) the applicant has not submitted claims and / or drawings within two months from the date of filing of the utility model;


D) the application for utility model resulted from the conversion of an application for patent for which, after the conversion has taken a decision to grant the patent;


E) one of the legal fees have been paid in the amount and terms provided by this law and the Government Ordinance no. 41/1998 on industrial property fees and the use thereof, republished, as amended;


F) the applicant has divided the application for utility model inconsistent, according to art. 16 para. (2).


(6) The invention covered by the application for utility model has the character of the special law and may not be disclosed without the applicant's consent to publication. OSIM maintain the secrecy level assigned by institutions in the filed documents. If the documents are not declassified before publication of the utility model registration, OSIM public utility model registration within one month from the date the declassification of information.


(7) mention of the decision to register the utility model or reject the application model is published in BOPI, within one month of the date on which the period prescribed by law for lodging appeals under the terms of regulations of this law.


(8) With the mention of the decision to register the utility model is made publicly available description, claims or, where appropriate, amended claims and drawings, as well as search report, if it is not published later.


(9) Any person may request OSIM, payment of legal fees, conducting a search report based on amended claims.


(10) OSIM shall not publish amendments made after the filing date, which have extended the claim.


Article 20


(1) Pursuant to the decision on registration of a utility model, taken by the examining specialist, OSIM shall issue the certificate holder utility model, together with the description, claims and, where appropriate, drawings of the utility model.


(2) Date of issue of the certificate is the publication of the mention of the registration decision.


(3) Certificate of utility model protection is a title granted without examining the conditions laid down in art. 1 para. (1) and the exercise of exclusive rights is the owner's responsibility, taking into account the report drawn up by OSIM


Article 21


(1) OSIM is the National Register of utility model applications filed and the National Register of utility models registered.



(2) Conditions for entries in national registries in para. (1), for issuing copies or extracts of the data in these registers, and the public inspection of recorded data shall be determined by the implementing regulation of this law.


Chapter III


rights protection
Article 22


(1) Decisions taken under Art. 19 para. (2) and (4) OSIM may be appealed in writing and motivated by the applicant or by the proprietor of the utility model, within two months of notification.


(2) The appeal shall be dealt with OSIM by a reexamination of the Appeals Department.


(3) The Board of Appeal shall decide on the acceptance or rejection of the appeal and communicate the decision to the applicant.


Article 23


(1) A utility model registered with OSIM may be canceled throughout on request if it finds that:


A) subject utility model does not satisfy the requirements of Art. 1 para. (1) or part of the categories under Art. 1 para. (2) or (4) where applicable;


B) the object of utility model does not disclose the invention clearly enough and completely so that a person skilled in the art to be carried out according to art. 11;


C) the object of the utility model extends beyond the content of the application as filed;


D) the holder is not entitled to register the utility model;


E) the protection conferred by the utility model has been extended.


(2) If the grounds for cancellation relate only to part of the utility model, it will be canceled in part.


(3) Cancellation shall be settled OSIM by a reexamination of the Appeals Department.


(4) panel ruling reexamination board shall notify the parties within 15 days after delivery and may be subject to appeal to the Court of Bucharest within 30 days from notice.


----------
Alin. (4) art. Article 23 has been amended. 67 of Law no. 76 of May 24, 2012 published in the Official Gazette no. 365 of 30 May 2012.

(5) The Court of Bucharest may be appealed only to appeal to the Court of Appeal.


----------
Alin. (5) art. Article 23 has been amended. 67 of Law no. 76 of May 24, 2012 published in the Official Gazette no. 365 of 30 May 2012.

(6) Cancellation shall be effective from the date of filing of the utility model.


Article 24


(1) Any person marking products or packaging thereof a sign liable to create the impression that products are protected as utility models under this Act, or any person who uses such a sign as a heading on official correspondence, the company, his business cards or announcements must, at the request of any interested person to provide information relating to the utility model underlying the use of the sign.


(2) At the request of the court, OSIM shall submit the papers, documents and information necessary for judging the cause was invested, finally recovering these acts. Summoning to the court shall be made only for this purpose.


(3) Petitions Justice in industrial property rights are exempted from judicial fees.




Chapter IV International Applications for utility model protection

Article 25


(1) An international application that has received international filing date to a receiving Office and designated state that Romania has the same effect as a utility model application has been filed with OSIM on the same date.


(2) An international application has no effect in Romania in the cases provided for in art. 24 para. (1) point. (I) and (ii) of the Patent Cooperation Treaty adopted at the Diplomatic Conference in Washington on 19 June 1970, ratified by Romania by the Decree no. 81/1979.


Article 26


(1) If the applicant wishes to continue the international application in Romania, must, within 30 months from the international filing date or, if priority is claimed, the priority date, to open the national phase Romania for a utility model.


(2) Para. (1) applies if the applicant justified, opens the national phase within two months from the expiry of 30 months, fee for delayed opening the national phase.



(3) For entering the national phase in Romania, the applicant shall submit an application must contain explicit or implicit request for opening the national phase utility model translation into Romanian of the description, claims and drawings of the international application and pay the filing fee.


(4) After entering the national phase, the international application is subject to the procedures stipulated by this law and its implementing rules.


(5) If the applicant did not meet the requirements of paragraph. (1) or (2) as applicable, the international application is considered that Romania never had the effects of a utility model applications.


Article 27


An applicant, natural or legal person residing in Romania or Romanian or having an industrial or commercial real and serious in Romania, according to art. 3 of the Paris Convention for the Protection of Industrial Property of 1883, to which Romania adhered through the Decree no. 1177/1968 may file with OSIM as the receiving office, an international application. Priority may be claimed either on a utility model application or an application for patent.



Chapter V Transitional and Final

Article 28


Provisions of Law no. 64/1991 on patents, republished on:

A) definitions;


B) right to the patent;


C) registration and examination of the patent application, including priorities, and the application is withdrawn;


D) patent rights and corresponding obligations and rights of prior user;


E) transfer of rights;


F) rights,


Apply by analogy to utility models pursuant to the implementing regulation of this law.

Article 29


Patent applications whose filing date prior to the date of entry into force of this law can not be converted into applications for utility model, according to Art. 14.

Article 30


(1) This Law shall enter into force 90 days after its publication in the Official Gazette of Romania, Part I.


(2) The term under paragraph. (1) The Government shall approve, by resolution, the regulation implementing this law.


Article 31


Upon entry into force of this law, Government Ordinance no. 41/1998 on the fees in the industrial property and use regime, as republished in the Official Gazette of Romania, Part I, no. 959 of 29 November 2006, as amended, is amended as follows:
1. Article 15 is amended to read as follows:
"Art. 15. - The provisions of art. 2 shall not apply to the procedures set out in section. 5 and pt. 6 a) and b) of Annex no. 2 . "
2. Article 16 is amended to read as follows:
"Art. 16 - Fees for renewal of utility model protection are paid with the fee for maintenance in force or year groups, according to Annex no. 2."
March. Annex. 2 is amended to read as follows:
"SCHEDULE. 2 AMOUNT AND TIME LIMITS

of payment of fees for applications and certificates of registration of utility model
┌─────┬───────────────────────────────┬────────────────────────┬──────────────┐
│Nr. │ │ │ │Cuantumul
│crt. │Obiectul payment term │ │ │ Payment │ │
├──────┬───────┤ (lei) │ (euro) │
├─────┼───────────────────────────────┼────────────────────────┼──────┼───────┤
│ 1. │Depunerea model application │două months of │108 │ │
│ 30 │de utility │depunerii ├──────┼───────┤
│ │a) paper │ │ │ 72 20 │
│ │b) electronic means │ │ │ │
├─────┼───────────────────────────────┼────────────────────────┼──────┼───────┤
│ delayed phase 2. │Deschiderea │două months of │324 │ │
│ 90 │naţionale │expirării term │ │ │
│ │ │30 months from the date of │ │ │
│ │ │ │ │priorităţii claimed
│ │ │ │în request │ │ │ │
│ │ │ │internaţională │
├─────┼───────────────────────────────┼────────────────────────┼──────┼───────┤
│ 3. │Întocmirea and publishing a │două months from the date of │360 │100 │
│ │depozit │raport documentation or with │ │ │
│ │ │ │depunerea request de│ │
│ │ │ │ │către a third │
├─────┼───────────────────────────────┼────────────────────────┼──────┼───────┤

│ 4. │Conversia a model applications │două months of │ │ 36 10 │ │ │de utility in
an application │ │ │depunerii demand
│ │brevet │ invention │conversie │ │ │
├─────┼───────────────────────────────┼────────────────────────┼──────┼───────┤
│ 5. │Publicarea utility model │două months of │1.400 │400 │
│ │tate (description, claims, │ │ │transmiterii by
│ │desene │ accompanied by report │ │ │solicitant report
│ │documentare │ not exceeding │ │ │de documentary
│ │20 │ pages), release │ │ │ │
│ │ │certificatului model │ │ │
│ │ │utilitate and keeping │ │
│ │ │vigoare model for │ │ │ │
│ │primii six years │ protection │
│ │ │ ├──── ───────────────────────────┤ ├──────┼───────┤
│ │- for each page plus│ │ │ 5 │ 18
├─────┼───────────────────────────────┼────────────────────────┼──────┼───────┤
│ 6. │a) Renewal of protection pentru│până the start │720 │200 │
│ │anii 7-8 │perioadei protection │ │ │
│ ├───────────────────────────────┼────────────────────────┼──────┼───────┤
│ │b) Renewal protection │ │ pentru│până the start
│ │anii │ 9-10 │perioadei protection │1.080 │300 "│
└─────┴───────────────────────────────┴────────────────────────┴──────┴───────┘

This law was adopted by the Parliament of Romania, in compliance with art. 75 and art. 76 par. (2) of the Romanian Constitution.
Chamber of Deputies Speaker Bogdan Olteanu
|| | President of the Senate Nicolae Vacaroiu

Bucharest, 3 December 2007.
Nr. 350. _________