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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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LEGE no. 350 350 of 3 December 2007 (* updated *) on utility models ((applicable from 1 February 2013 *)
ISSUER PARLIAMENT




------------- *) The updated form of this normative act until February 1, 2013 is carried out by the legal department of S.C. "Territorial Center of Electronic Computing" S.A. Piatra-Neamt by including all modifications and additions made by LAW no. 76 76 of 24 May 2012 . The content of this act is not an official document, being intended to inform users The Romanian Parliament adopts this law + Chapter I General provisions + Article 1 (1) The utility model protects, under the present law, any technical invention, provided it is new, to exceed the level of simple professional skill and to be susceptible to industrial application. (2) They are not considered inventions, in the meaning of para. (1), in particular: a) discoveries, scientific theories and mathematical methods; b) aesthetic creations; c) plans, principles and methods in the exercise of mental activities, games or in the field of economic activities, as well as computer programs; d) information presentations. (3) The provisions of par. ((2) do not exclude the protection by utility model of the intended objects or activities, except to the extent that the application for utility model or utility model refers to such objects or activities considered in itself. (4) They cannot be protected by registration as a utility model: a) inventions whose commercial exploitation is contrary to public order or good morals, including those harmful to the health or life of persons, animals or plants or which are likely to bring serious touches to the environment, provided that this exclusion does not only depend on the fact that their exploitation is prohibited by a legal provision; b) plant varieties and animal breeds; c) inventions having as object a biological material; d) inventions having as their object a product consisting of a chemical or pharmaceutical substance; e) inventions having as their object a process or method. + Article 2 The right to the utility model belongs to the inventor or his successor in rights. + Article 3 (1) An invention is new if it is not contained in the stage of the technique. ((2) 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 in any other way, until the date of the deposit of the request for utility model. (3) The stage of the technique also includes the content of utility model applications, patent applications submitted to the State Office for Inventions and Trademarks, hereinafter referred to as O.S.I.M., as well as that of applications that have effect in the Romania, as they were submitted, which have a deposit date prior to the one provided in par. ((2) and which were published on or after this date, according to the law. (4) In application of paragraph ((2) and (3), the disclosure of the invention shall not be taken into account if it has intervened within the period of 6 months before the date of deposit of the application for a utility model and whether it results, directly or indirectly: a) from the applicant or from his predecessor to rights; or b) as a result of obvious abuse of the applicant or his predecessor in rights. + Article 4 An invention is susceptible to industrial application if its object can be manufactured or used in any type of industry, including agriculture. + Article 5 (1) The registered utility model gives the holder or an exclusive right of exploitation of the invention for the entire duration and to prohibit the performance without the consent or the following acts: manufacture, use, offer for sale, sale or import for use, offering for sale or sale of the invention protected by utility model. (2) The holder also has the right to prohibit any third party who does not have the consent or provide or provide persons other than those entitled to exploit the protected invention by utility model means of application of the invention. on the territory of Romania, relating to an essential element of the invention, when the third party knows or, in the circumstances given, should have known that the means are adequate and intended for the application of the invention. ((3) Provisions of para. (2) does not apply to commercial products of general consumption, except in situations where the third party tries to determine the commission of facts that would violate the exclusive right provided in par. ((1). ((4) If the essential elements of a utility model have been taken from the description, drawings, experimental models, devices or equipment belonging to a person other than the holder, without its consent, protection granted cannot be used at the expense of that person. + Article 6 (1) The rights conferred by a registered utility model shall not extend to the acts referred to in art. 5 5 para. ((1) on the protected product, carried out after the product has been marketed in a Member State of the European Union, by the holder or with his consent. (2) However, the rights conferred by a utility model shall extend to the acts referred to in art. 5 5 para. ((1) on the protected product, carried out after the product has been marketed outside a Member State of the European Union, by the holder or with his consent. + Article 7 (1) The duration of a utility model is 6 years, starting from the date of deposit. (2) The right holder may obtain, on the basis of a request made in writing to O.S.I.M., the renewal of the protection through the utility model for another period of 2 years, but not earlier than one year and no later than 6 months before the expiry the duration referred to in paragraph ((1). (3) The right holder may obtain, on the basis of a request made in writing to O.S.I.M., the renewal of the protection by utility model for a second and final period of 2 years, but not earlier than one year and no later than 6 months before expiry of the duration referred to in ((2). (4) The duration of the utility model may not exceed 10 years from the date of deposit. (. The renewal fee may be paid until the expiry date of the period referred to in paragraph 1. ((1) or, as the case may be, in para. ((2) or within a period of 6 months from any of these data, with an increase of 50% of the amount of the legal fee. (6) The holder of the utility model can cumulatively pay the maintenance fees in force and the renewal fees for the entire protection period. (7) The mention of the renewal of protection according to the provisions ((2) and (3) shall be published in the Official Industrial Property Bulletin, hereinafter referred to as B.O.P.I. + Article 8 (1) The right to the utility model, the right to registration of the utility model and the rights arising from the registration of the utility model can be transmitted in whole or in part. (. The utility model may be subject to a real security or enforcement action. + Article 9 (1) The protection by utility model shall cease by: a) expiration of duration; b) non-payment of the protection renewal fees; c) waiver of the holder of the registered utility model. (2) The cessation of the protection provided in par. (1) produce the following day's effects: a) the date of expiry of the duration of the utility model, in the case provided ((1) lit. a) and b); b) communication by the holder of the waiver, in the case provided in par. ((1) lit. c). (3) If the waiver according to paragraph ((1) lit. c) refers only to certain parts of the utility model, it remains in force with respect to the other parties. O.S.I.M. takes notice of waiver, without examining whether the remaining parts of the utility model continue to meet the requirements of this law and whether the limitation is admissible. (4) The utility model is considered not to have retroactive effect from the date of deposit, if the patent is granted for an application: a) in which the priority of the application for utility model is claimed; or b) which has been converted into a utility model application, and the applicant has not expressly requested the withdrawal of the patent application. + Chapter II Registration procedure. Publication and issue of certificate + Article 10 (1) The application for utility model shall be drawn up in Romanian and shall be submitted to O.S.I.M., at the choice of the applicant, on paper or in another form and by means of transmission provided for in the implementing regulation of this law. (. The application shall contain: a) the identification data of the applicant; b) the request for protection by utility model, accompanied by the title of invention; c) a description of the invention; d) one or more claims; e) the drawings referred to in the description or in the claims. (3) The application for a utility model shall contain particulars to determine the identity of the inventor. (4) If the applicant is not the same as the inventor, he must declare and provide proof, through a document filed with O.S.I.M., until a decision is made, that he is entitled to the registration of the utility model. (5) In all proceedings before O.S.I.M., the applicant shall be considered to be the person entitled to the registration of the utility model. (6) For each invention an application for utility model shall be submitted. (7) Claims must clearly define the object of the protection required, be concise and be fully supported by the description of the invention. (8) The application shall be accompanied by a summary of the invention. The summary must contain a brief presentation of the invention; it serves exclusively technical information and cannot be considered for other purposes, in particular for determining the extent of protection. (9) Until the date of the decision to register the utility model, changes to the application shall be allowed insofar as they do not extend the subject- No rights can be derived from changes that extend the scope of the application. + Article 11 The invention must be disclosed in the application of a utility model sufficiently clear and complete, so that a specialist person in the field can achieve it. + Article 12 (1) The date of deposit of the application for utility model is the date on which they were submitted to O.S.I.M. the following: a) an explicit or implicit indication that a utility model is required; b) indications allowing the establishment of the identity of the applicant or allowing him to be contacted by O.S.I.M.; c) a part that, at first glance, appears to be a description of the invention. (2) Claims and drawings concerning the invention may also be filed within two months from the date of deposit. ((3) If the requirements referred to in par. ((1) lit. a) and/or c), O.S.I.M. notifies the applicant of the deficiencies found and requests it to be remedied within two months from the date on which at least the requirement provided in par. ((1) lit. b) has been fulfilled. (4) The date of filing of the application for utility model is the date on which the documents containing the deficiencies reported in the notification submitted according to the provisions of par. ((3). (5) If the deficiencies reported have not been remedied within the given time limit or if the deficiencies relate to the requirement referred to in paragraph 1. ((1) lit. b), no deposit date is granted, and the application for utility model is considered not to have been filed. + Article 13 The deposit of the utility model request has the value of a national regulatory deposit from the date of deposit, granted according to the provisions of art. 12, if the provisions of art. 10 10 para. ((2). + Article 14 (. An application for a utility model may also result from a patent application having as its object the same invention, if the applicant submits a request for transformation: a) during the examination procedure of the patent application until the conclusion of the technical preparations for the publication of the mention of the decision granting the patent or rejecting the patent application; b) in a period of 3 months from the date on which O.S.I.M. publishes the mention of a decision to cancel the patent of invention remaining final and irrevocable on the grounds of lack of inventive activity. (2) If the requirements referred to in par. ((1), the demand for utility model resulting from the transformation benefits from the same date of deposit and the right of priority born of the patent application. (3) Transformation provided in par. ((2) has no effect after the expiry of a 10-year period calculated from the date of deposit of the patent application. (4) For an invention 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) They can be transformed into utility model applications and European patent applications in the situations referred to in art. 135 of the Convention on the Liberation of European Patents (European Patent Convention), adopted in Munich on 5 October 1973, to which Romania acceded by Law no. 611/2002 , with subsequent revisions, under the conditions provided for by the Implementing Regulation of this Law. + Article 15 (1) The applicant for a utility model may ask, until a decision on registration is taken, to convert it into a patent application, under the conditions provided for by the implementing regulation of this law. (2) A patent application, resulting under the conditions provided in par. (1), shall enjoy the same date of deposit and the right of priority born of the application for utility model. (3) The conversion of an application for a utility model in application for a patent is not allowed if the application for utility model resulted from the transformation of a patent application, according to the provisions of art. 14. + Article 16 (1) A utility model application must refer to a single invention. (2) The application for a utility model containing two or more inventions must be divided by the applicant, on his own initiative or at the request of the O.S.I.M., until a decision on this request is taken. (3) If, until a decision on the original application is made, the applicant does not divide it by submitting claims defining the protection of a single invention, object of the original application, O.S.I.M. declares the application as considered withdrawn. + Article 17 (1) O.S.I.M. shall examine whether the application for a utility model meets: a) provisions of art. 10 10 para. ((3) establishing the identity of the inventor; b) provisions of art. 10 10 para. ((4) on the right to registration of the utility model; c) provisions of art. 10 10 para. (2) relating to the content of the application for utility model; d) the conditions regarding the warehouse, provided in art. 12 12 and 13; e) conditions for the recognition of priority; f) the conditions for the existence of a single invention, provided in art. 16 16 para. ((1). ((2) O.S.I.M. shall examine whether the invention which is the subject of the application a) is not excluded from the protection by utility model, according to the provisions of art. 1 1 para. (2), or cannot be protected according to the provisions of art. 1 1 para. ((4); b) is revealed, according to art. 11. (3) O.S.I.M. does not examine the object of the application of utility model in terms of meeting the conditions regarding novelty, exceeding the level of simple professional skill, as well as industrial applicability. + Article 18 (1) For all utility model applications for which the conditions laid down in art. 17 17 para. (1) and (2) regarding the registration of the utility model, O.S.I.M. shall draw up, within 6 months from the date of deposit, a documentation report in which the documents taken into account in terms of the conditions provided in art. 1. (2) For the preparation of the documentation report, the applicant shall submit to O.S.I.M., within two months from the date of application or, as the case may be, from the date of deposit, proof of payment of the legal fee. (3) No documentation report shall be drawn up for applications from the conversion of a patent application that already had a documentation report prepared and published by O.S.I.M.. (4) The documentation report, accompanied by copies of the quoted documents, shall be transmitted to the applicant together with the notification of O.S.I.M. that the applicant submit within two months proof of payment of the fee for publication and issuance of the certificate and of maintenance of the utility model for the first 6 years of protection. At the reasoned request of the applicant, that period may be extended only once a further two months. (5) The applicant may modify the claims within the period provided in par. ((4) by submitting a new set of claims. In such cases, O.S.I.M. does not perform a supplement or a modification of the documentation report. (6) If within the period provided in par. (4), at O.S.I.M. the proof of payment of the tax was not submitted, the application is declared to be considered withdrawn. (7) If the documentation report has not been made public with the publication of the documentation provided for in art. 19 19 para. (8), it shall be published later, under the conditions provided for by the implementing regulation of this law. + Article 19 (1) The decisions on the application for utility model shall be taken by a specialized examination commission of the Patent Directorate of invention of the O.S.I.M., on the basis of the application examination report. (2) O.S.I.M. decides the registration of the utility model, if the conditions provided in art. 17 17 para. ((1) and (2) and if the fee for publication of the utility model has been paid, the issuance of the certificate and the maintenance of the utility model in force for the first 6 years of protection. (3) At the request of the applicant, the decision on registration may be postponed, without exceeding a period of 18 months from the date of filing of the application or from the date from which it was submitted, under the conditions provided for by the application of this law. (4) O.S.I.M. decides to reject the registration of the utility model in the following situations: a) the invention, object of the application, is excluded from the protection by utility model, according to the provisions of art. 1 1 para. (2), or cannot be protected, according to the provisions of art. 1 1 para. ((4); b) the application for a utility model does not meet the provisions of 10 10 para. ((1) and/or (2) or par. ((7) or of art. 11 11 times of art. 12 12; c) the applicant opened the national phase after the expiry of the term provided in 26 26 para. ((1) or (2), as applicable; d) the applicant, other than the inventor, did not prove within the period provided for in art. 10 10 para. ((4), that it is entitled to the registration of the utility model. (5) The applications for utility model in the following situations shall be declared as withdrawn: a) the inventors were not indicated in accordance with the provisions of art. 10 10 para. ((3) and (4); b) the request was the basis for the claim of priority in a subsequent application submitted by national or for which the national phase was opened in Romania; c) the applicant has not submitted the claims and/or the drawings within two months from the date of deposit of the application for utility model; d) the demand for utility model resulted from the transformation of a patent application for which, after the transformation, a decision was taken to grant the patent; e) one of the legal fees was not paid in the amount and at the time limits provided for by this Law and by Government Ordinance no. 41/1998 on industrial property taxes and their regime of use, republished, as amended; f) the applicant has not divided the application for a non-unified utility model, according to art. 16 16 para. ((2). (6) The invention subject to the application for utility model has the character established by the special law and cannot be disclosed without the consent of the applicant until publication. O.S.I.M. preserves the classification level assigned by the institutions in the documents submitted. If the documents are not declassified before the publication of the registration of the utility model, O.S.I.M. publishes the registration of the utility model within one month from the date of communication of the declassification of the information. (7) The mention of the decision to register the utility model or to reject the model application shall be published in B.O.P.I., within one month from the date on which the deadline provided by law for the formulation of the appeal expired and under the conditions provided by the implementing regulation of this Law. (8) With the publication of the statement of the decision to register the utility model, the description, claims or, as the case may be, the amended claims and the drawings, as well as the documentation report, shall be made available to the public if it is not published subsequently. (9) Any person may request to O.S.I.M., with the payment of the legal fee, the performance of a documentation report on the basis of the amended claims. (10) O.S.I.M. does not publish the changes made after the deposit date, which have extended the object of the application + Article 20 (1) Pursuant to the decision to register the utility model, taken by the specialized examination commission, O.S.I.M. shall issue to the holder the utility model certificate, together with the description, claims and, as the case may be, drawings of the model utility. (2) The date of issue of the certificate is the date of publication of the registration (3) The certificate of utility model is a title of protection granted without examining the conditions provided for in art. 1 1 para. (1), and the exercise of exclusive rights shall be held on the responsibility of the holder, taking into account the documentation report prepared by O.S.I.M. + Article 21 (1) O.S.I.M. is the holder of the National Register of applications for utility model submitted and of the National Register of registered utility models. (2) The conditions for registration in the national registers provided in par. ((1), the release of copies or extracts of the data entered in these registers, as well as the public inspection of the data entered are established by the regulation implementing this law. + Chapter III Defending rights + Article 22 (1) Decisions taken according to the provisions of art. 19 19 para. ((2) and (4) may be challenged at O.S.I.M. in writing and motivated by the applicant of the application or by the holder of the utility model, within two months of communication. (2) The contestation shall be settled at O.S.I.M. by a review panel within the Department of Appeals. (. The review board shall decide on the admission or rejection of the appeal and shall communicate the decision to the applicant. + Article 23 (1) A utility model registered with O.S.I.M. may be cancelled for the duration, upon request, if it is found that: a) the object of the utility model does not meet the requirements provided in 1 1 para. (1) or is part of the categories presented in art. 1 1 para. ((2) or (4), as applicable; b) the object of the utility model does not reveal the invention sufficiently clear and complete, so that a specialized person in the field can achieve it, according to art. 11 11; c) the object of the utility model exceeds the content of the application, as submitted; d) the holder was not entitled to the registration of the utility model; e) the protection conferred by the utility model has been extended. (2) If the reasons for cancellation refer only to a part of the utility model, it will be cancelled in part. (3) The cancellation shall be settled at O.S.I.M. by a review panel of the Department of Appeals. (4) The decision of the commission for review, motivated, shall be communicated to the parties within 15 days of delivery and may be appealed to the Bucharest Court within 30 days of the communication. ---------- Alin. ((4) of art. 23 23 has been amended by art. 67 of LAW no. 76 76 of 24 May 2012 published in MONITORUL OFFICIAL no. 365 365 of 30 May 2012. (5) The decisions of the Bucharest Tribunal can be appealed only with appeal to the Bucharest Court of Appeal. ---------- Alin. ((5) of art. 23 23 has been amended by art. 67 of LAW no. 76 76 of 24 May 2012 published in MONITORUL OFFICIAL no. 365 365 of 30 May 2012. (6) The cancellation takes effect from the date of deposit of the utility model application. + Article 24 (1) Any person who marks the products or their packaging with a sign likely to create the impression that the products are protected as utility models, according to this law, or any person who uses such a sign as a header on official correspondence, on the company, on business cards or in notices has the obligation, at the request of any interested person, to give information on the utility model on which the use of the sign is based. (2) At the request of the court, O.S.I.M. 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. (3) Applications in the field of industrial property rights are exempt from judicial duties. + Chapter IV International applications for utility model protection + Article 25 (1) An international application that received the international deposit date at a receiver office and in which Romania is a designated state has the same effect as a request for a utility model that was submitted to O.S.I.M. on the same date. (2) An international application has no effects in Romania in the cases provided in art. 24 24 para. ((1) pt. ((i) and (ii) of the Patent Cooperation Treaty, adopted at the diplomatic conference in Washington on 19 June 1970, ratified by Romania by Decree of the State Council no. 81/1979 . + Article 26 (1) If the applicant wishes to continue the international application in Romania, it must, within 30 months from the date of international deposit or, if a priority has been claimed, from the date of priority, to open the national phase in Romania for a utility model. (2) Provisions of para. ((1) shall also apply if the applicant, for justified reasons, opens the national phase within two months of the expiry of the 30-month period, with the payment of the delayed opening fee of the national phase. ((3) For the opening of the national phase in Romania, the applicant shall submit an application which must contain the explicit or implicit request of the opening of the national phase for a utility model, the Romanian translation of the description, the claims and drawings of the international application and pays the deposit fee. (. After the opening of the national phase, the international application shall be subject to the procedures laid down by this Law and its implementing Regulation. (5) If the applicant has not fulfilled the requirements provided in par. (1) or (2), as the case may be, the international application shall be considered as having never produced in Romania the effects of a request for a utility model. + Article 27 An applicant, natural person or Romanian legal person or residing in Romania or having an actual and serious industrial or commercial enterprise in Romania, within the meaning of art. 3 of the Paris Convention for the Protection of Industrial Property, from 1883, to which Romania joined by Decree of the State Council no. 1.177/1968 , may submit to O.S.I.M., as a receiver's office, an international application. The priority can be claimed either on the basis of a utility model request or a patent application for invention. + Chapter V Transitional and final provisions + Article 28 Provisions Law no. 64/1991 on patents, republished, relating to: a) definitions; b) the right to patent; c) registration and examination of the patent application, including the priorities, and the withdrawal of the application; d) the rights conferred by the patent and the related obligations, as well as the rights of previous use; e) transmission of rights; f) defending rights, apply by analogy to utility models and in accordance with the regulation implementing this law. + Article 29 Applications for patent of invention having the date of deposit prior to the date of entry into force of this law cannot be transformed into utility model applications, according to the provisions of art. 14. + Article 30 (1) The present law shall enter into force 90 days from the date of publication in the Official Gazette of Romania, Part I. (2) Within the period provided in par. (1), the Government will approve, by decision, the regulation for the application of this law. + Article 31 On the date of entry into force of this Law, Government Ordinance no. 41/1998 on taxes in the field of industrial property and their regime of use, republished in the Official Gazette of Romania, Part I, no. 959 of 29 November 2006, as amended, shall be amended as follows: 1. Article 15 is amended and shall read as follows: "" Art. 15. -The provisions of art. 2 2 shall not apply to the procedures laid down in point 5 5 and in section 6 lit. a) and b) of Annex no. 2 2. " 2. Article 16 is amended and shall read as follows: "" Art. 16. -The fees for the renewal of the protection of utility models are paid with the maintenance fee in force or by groups of years, according to Annex no. 2 2. " 3. Annex no. 2 is amended and will read as follows: "" ANNEX No 2 AMOUNT AND TIME LIMITS on the payment of fees for utility model registration applications and certificates ┌ ----- ----------------------------------------------- ---------------------------------------- | | No. | | | The amount | Crt. | Payment object | Payment term in the amount -- | | | | (lei) | (euro) | ├ ----- ----------------------------------------------- 留言 | 加入好友 ... | | 1. | Submission of model request | two months from date | 108 | 30 | | | utility | | | | | | | | | a) on paper support | | 72 | 20 | | | b) by electronic means | | | | | | ├ ----- ----------------------------------------------- 留言 | 加入好友 ... | 2. | Delayed opening of phase | two months from date | 324 | 90 | | | national | expiry of the term | | | | | | | 30 months from date | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ├ ----- ----------------------------------------------- 留言 | 加入好友 ... | | 3. | Preparation and publication of a | two months from date | 360 | 100 | | | documentation report | deposit or with | | | | | | | | | | | | | | | | | | | | | | | | | | | | ├ ----- ----------------------------------------------- 留言 | 加入好友 ... | | Four. | Conversion of a model request | two months from date | 36 | 10 | | | utility in a request for | submission of application | | | | | | | patent invention | | | | | | | | | ├ ----- ----------------------------------------------- 留言 | 加入好友 ... | | Five. | Publication of the utility model-| two months from date | 1.400 | 400 | | | tate (description, claims, | transmission to | | | | | | | | drawings accompanied by report by | applicant of the report | | | | | | | documentaries, which do not exceed | documentation | | | | | | 20 pages), release | | | | | | | | | model certificate | | | | | | | | | | utility and maintenance in | | | | | | | | | | | | | | | | | | | | first 6 years of protection | | | | | | | I'm a-a-a-a-a-a-a- | |-for each page in addition | | 18 | 5 | ├ ----- ----------------------------------------------- 留言 | 加入好友 ... | | Six. | A) Renewal of protection for | up to the start | 720 | 200 | | | years 7-8 | | | | | | | | | | ] [] [] ] | | B) Renewal of protection for | until the start | | | | | | | years 9-10 | protection period | 1.080 | 300 " | └ ----- ----------------------------------------------- ---------------------------------------- [...] This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT BOGDAN OLTEANU SENATE PRESIDENT NICOLAE VACAROIU Bucharest, December 3, 2007. No. 350. _________