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THE INDUSTRIAL PROPERTY CODE
GENERAL PROVISIONS
GENERAL PROVISIONS
(Object)
The present Statute shall govern the allocation of industrial property rights
to inventions and other creations and the distinctive signs therein referred to
and shall, in particular, serve to protect creativity, technological development,
fair competition and consumers' interests.
(Subjective scope)
1. The present Statute shall apply to:
a) All individuals holding a Macao Resident's Identity Card;
b) All bodies corporate registered in Macao and constituted according to the
Law of the Territory;
c) All individuals or bodies corporate, nationals of the countries or territories
being members of the World Trade Organization, hereinafter referred to as the WTO,
and the International Union for the Protection of Industrial Property, hereinafter
referred to as the Union, in accordance with the terms of the Paris Convention of
20 March 1883 and revisions thereof, regardless of place of domicile or establishment,
save according to the special provisions as to competence and procedure.
2. Nationals of any countries of the WTO or of the Union who are resident or
have an industrial or commercial establishment, in fact and not as a matter of form,
in any of the countries or territories of the WTO or of the Union shall be considered
nationals of the WTO or of the Union.
3. With regard to any other persons not covered by the previous paragraphs, the
provisions of international agreements between Macao and the respective countries or territories
shall apply and, in the absence of such, the principle of reciprocity shall apply.
4. The existence of reciprocity shall be recognized by ruling of the Governor,
to be published in the Official Bulletin, after consultation with the Directorate
of the Justice Services.
(Objective scope)
Industrial property includes all sectors of economic activity, including agricultural,
forestry, livestock and fishing activities, the extracting and processing industries,
trade and services, as well as all manufactured or natural products.
(Territorial scope)
The rights conferred under the terms of the present Statute shall cover the whole
Territory.
(Content of industrial property rights)
Industrial property rights shall confer on the respective holder full and exclusive
enjoyment, use and disposal of the inventions, creations and distinctive signs,
within the limits, conditions and restrictions determined by Law.
(Proof of industrial property rights)
1. The proof of industrial property rights, referred to in the present Statute,
shall be provided by means of the corresponding certificates which shall contain
the elements necessary for the perfect identification of the right at issue.
2. Industrial property right certificates issued by international organizations
whose effects extend to Macao shall be equivalent to the certificates referred to
in the aforegoing paragraph.
3. On request, holders of various industrial property rights may obtain:
a) Certificates whose content is similar to that of the certificate they hold;
b) Certificates, conferring protection on industrial property rights in the Territory,
issued by international organizations and whose effects extend to Macao;
c) Certificates bearing witness to the filing of applications.
4. The models of the certificates referred to in paragraph 1 above shall be approved
by an order of the Governor and be published in the Official Bulletin.
(Temporary protection for compensation purposes)
1. Application for the granting of an industrial property right shall provisionally
confer on the applicant, as from the date of the respective publication in the Official
Bulletin, the protection that would be conferred by the granting of that right,
simply for the purpose of calculating any compensation due.
2. The same temporary protection shall also be ensured, even before the date
of the publication of the application, in relation to any persons to whom the applicant
has disclosed knowledge of the presentation of the application and revealed details
of the procedure.
3. No legal decision may be handed down in relation to acts proposed on the basis
of the protection provided under the present article until the patent or registration
has been finally granted or refused.
(Jurisdiction)
The jurisdiction to grant industrial property rights shall lie with the Director
of the Department of Economic Services, herein referred to as the Director of the
DES.
(General grounds for refusal)
1. The following shall constitute grounds for refusing to grant industrial property
rights:
a) The object is not suitable to be protected;
b) Violation of rules of public order or good mores;
c) Recognition that the applicant intends to practice unfair competition, or
that this is possible irrespective of his intention;
d) Violation of the rules that define to whom the right belongs;
e) Failure to submit documents required under the terms of the present Statute
or of the respective regulations;
f) Failure to comply with the procedures or formalities for the granting of the
industrial property right;
g) Failure to pay of the fees due.
2. In the cases provided for in sub-paragraphs (e) to (g) of the previous paragraph,
the cases shall not be submitted for decision without firstly notifying the applicant
in writing and setting a deadline within which he may rectify the situation.
3. Where circumstances are discovered that could constitute grounds for annulling
the requested certificate, instead of refusal it may be decided wholly or partially
to grant it should the party concerned so request.
(Publication of acts and decisions)
1. The Department of Economic Services, herein referred to as the DES, shall
ensure the publication in Series II of the Official Bulletin of the following act
and decisions:
a) Notice of applications for the various types of industrial property rights;
b) Notice of complaints, of opposition, or the filing of nullity or cancellation
and other suits ;
c) Notifications of rulings;
d) Granting and refusal of industrial property rights, including extensions of
foreign patents;
e) Declarations of public offer to exploit inventions, as well as their respective
withdrawal or forfeiture;
f) Renewals and revalidations of industrial property rights;
g) Assignments of industrial property rights;
h) Declarations of waiver of industrial property rights;
i) Applications for declaration of forfeiture of industrial property rights,
as well as declarations of forfeiture;
j) Legal decisions handed down in appeal cases or which constitute jurisprudence
on industrial property.
2. Publication in the Official Bulletin shall serve directly to notify both parties
and, save any provision to the contrary, it shall mark the beginning of the periods
for appeals and other purposes.
3. Notwithstanding the provisions of the preceding paragraph, if the parties
were notified in writing, the period shall be that set in the written notification
and shall, in general, run from the date thereof
4. The parties directly involved, or any other interested parties, may directly
apply to the DES to be provided with a statement of the decision on the applications
and the relative grounds therefor, even before publication of the corresponding
notice in the Official Bulletin.
(Assignment of industrial property rights - nature and forms)
1. Save express legal limitation, industrial property rights may be assigned,
total or partially, free of charge or for a consideration.
2. Assignment inter vivos shall be effected in writing failing which the assignment
shall be null and void.
3. The provision in the previous paragraphs shall apply to rights deriving from
applications for the granting of industrial property rights.
(Contractual licences)
1. Save express legal limitation, industrial property rights may, with or without
consideration, be licensed for exploitation in whole or part and, when for a limited duration,
for all or part of that duration.
2. The provision in the previous paragraph shall apply to rights deriving from
industrial property right applications, but a refusal to grant such rights shall
imply the forfeiture of the licence.
3. The exploitation contract licence shall be in writing.
(Privileges and limitations of the licensee)
1. Save stipulation to the contrary, the licensee shall, for all legal purposes,
enjoy the privileges conferred on the title-holder to which the exploitation licence
was issued, with the exceptions set forth in the following paragraphs.
2. The exploitation licence shall be deemed non-exclusive.
3. An exclusive exploitation licence shall be understood to be that in which
the owner of the industrial property right forswears the right, for the full currency
of the licence, to grant any other exploitation licences for the rights to which
the licence refers.
4. Unless otherwise stipulated in the respective contract:
a) The granting of an exclusive exploitation licence shall not preclude the owner
from also directly exploiting the industrial property right covered by the licence;
b) The right obtained through the exploitation licence may not be ceded without
the written consent of the industrial property right owner;
c) No exploitation sub-licences may be granted without the written authorization
of the of industrial property right owner;
(Garnishment, attachment and pledge)
Save express legal limitation, industrial property rights are subject to garnishment
and attachment and they may be given in pledge.
PRIORITY RIGHT
(Priority claim)
1. Except for the cases foreseen in the present Statute, industrial property
rights shall be granted to the first party to present the application in due and proper form
accompanied by all the documents required for that purpose.
2. If the applications be sent by mail, the mail should be sent registered or
in some equivalent manner and priority shall be awarded according to the date of
registration.
3. In the case of two applications for the same right being simultaneous or having
identical priority, the matter shall not be pursued until the applicants have previously
solved the question of priority by agreement or through the competent civil court.
4. If the application was not in the first instance accompanied by all the required
documents, priority shall be granted from the day and time at which the last missing
document is presented.
5. If the object of the application is altered in relation to the initial notice
published in the Official Bulletin, a new notice will have to be published and the
priority of the alteration shall be counted from the date on which that was requested.
(Priority right)
1. Anyone having regularly filed an application for the granting of an industrial
property right as envisaged in the present Statute, or any similar right, and who
has so done in any of the countries or territories members of the WTO or of the
Union, or in any intergovernmental organism with jurisdiction to grant rights the
effects of which extend to Macao, or successor of any such person, shall, on filing
the application in Macao, enjoy the priority right established in the Paris Convention
for the Protection of Industrial Property.
2. Any application, being a regularly filed application, formulated pursuant
to the terms of the domestic law of any country or territory member of the WTO or
of the Union, or of bilateral or multilateral treaties between countries or territories
members of the WTO or of the Union shall be recognized as creating a priority right.
3. A regular application shall be understood to be any filing that is adequate
to establish the date on which the application was filed in the country or territory
concerned, whatever may be the subsequent fate of the application.
4. In consequence of the provision in the previous paragraph, any subsequent
filing in Macao, before the expiry of the priority period, shall not be invalidated
by reason of any acts accomplished in the interval, in particular, another filing
or the publication or exploitation of the object of the filing.
(First application)
1. A subsequent application concerning the same subject as a prior first application
shall be considered the first application of which the filing date shall be the
starting point of the period of priority, if, at the time of filing the subsequent
application, the said prior application has been withdrawn, abandoned or refused,
without having been laid open to public scrutiny and without leaving any rights
outstanding and if, moreover, it has not served as a basis for claiming a priority
right.
2. In the case foreseen in the previous paragraph, the prior application may
not thereafter serve as a basis for claiming a right of priority.
3. Anyone wishing to take advantage of the priority of a prior filing shall accompany
the application filed in Macao by a declaration indicating the date and number of
such filing and the country or territory in which it was made.
4. In a case where an application claims several priorities, the period shall
be determined from the date of the oldest priority.
(Proof of priority right)
1. The DES may request parties claiming the right of priority to file a copy
of the first filing, duly certified by the filing authority, as well as certification
of the date of filing and, if necessary, a translation into one of the official
languages.
2. The requirement referred to in the previous paragraph may be met at any time,
but the applicant may meet it within a period of 3 months from the date of the filing.
3. The copy of the application shall be exempt from legalization and may be filed
free of charge within the period referred to in the previous paragraph.
4. When, for any reason, the right of the initial applicant has passed to a successor,
proof shall be required of that succession when filing the patent application or
registration in Macao.
5. Failure to comply with the provisions of the present article shall incur forfeiture
of the priority right claimed.
ADMINISTRATIVE PROCEDURES
(Entitlement to file)
Any party having an interest in a legal act shall be entitled to file before
the DES.
(Entitlement to take action)
1. Legal action may be taken only by:
a) An individual interested in or owning an industrial property right, or by
an agent especially empowered for the purpose by virtue of being established or
domiciled in the Territory;
b) A body corporate interested in or owning an industrial property right and
having its registered office in the Territory, through its director, manager or
employee duly accredited for the purpose;
c) An official industrial property agent authorized or accredited in the Territory;
d) An appointed lawyer.
2. When there is an appointed agent, notices shall be addressed directly to him.
3. If there are more than one appointed agent, and unless otherwise indicated
by the applicant or holder of the industrial property right, notices shall be addressed
to the last to have been involved in the proceedings in writing or, if this criterion
should not be applicable, to any one of them indifferently.
4. In the case of irregularities or omission in the performance of a given act,
the representative shall be notified directly and required to comply with the legal
conditions demanded within a non-extendible period of 1 month, without loss of the
priorities to which he is entitled. Failure to comply shall result in the act being
is considered ineffective.
(Applicant not domiciled, registered or established in the Territory)
1. When the application for the granting of industrial property rights is submitted
or sent by a party not domiciled or registered or established in the Territory,
the DES shall notify that party, instructing it to retain an agent within a period
of 1 month, pursuant to the terms of the previous article, if it has not already
done so.
2. Failure to retain an agent in the set period shall result in refusal of the
application.
(Access to the processes)
1. Once the process has reached the publication stage, any interested party may
request the documents referring thereto as well as photocopies or ordinary copies
of drawings, photographs, plans and models filed with the patent application or
registration, provided that this does not prejudice third-party rights.
2. In any process, the publication stage shall be deemed reached when the application
is published in the Official Bulletin.
3. The applicants and their respective agents shall, pursuant to the terms of
the previous article, have access to the proceedings before publication of the application,
save as determined in the following sub-paragraphs.
4. The DES can, even before the publication of the application, disclose to third
parties and render public:
a) The application number;
b) The filing date of the application and, if so demanded, the priority right,
the priority date, the country or territory in question and the application number
on which that right is based;
c) The name of the individual or body corporate that filed the application;
d) The title or short title that synthesizes the subject or subjects for which
protection is being sought or the purpose it is meant to serve.
5. Access to the proceedings is permitted, even before publication of the application
and regardless of whether or not the applicant agrees:
a) To anyone who proves to be entitled, subject to respecting the request not
to disclose the inventor's or creator's name, if this is apparent from the documents
attached;
b) In the course of publication of a divisible application pursuant to the terms
of Article 91(6).
(Printed forms and formal documentary requirements)
1. Applications for the granting of industrial property rights shall be set out
on the appropriate printed forms, according to models to be approved in a ruling
by the Governor, to be published in the Official Bulletin.
2. The ruling referred in the previous paragraph can:
a) Establish the compulsory use of printed forms for other acts or procedures
in addition to those provided for in the present Statute;
b) Determine the conditions in which the printed forms are substituted when computer
procedures are used.
3. The printed forms referred to in the present article are available free of
charge from the DES at the offices open to the public.
4. The DES may, by notice published in the Official Bulletin, set formal requirements
to be met with respect to the documents and other items to be appended to the applications.
(Rectification of application)
1. If, upon initial examination, it appears that the application for the granting
of industrial
property rights was incorrectly formulated, the applicant shall be notified and
required to file it in accordance with the indicated conditions, notwithstanding
the provisions of article 120(3).
2. Until the decision to grant or refuse the right is handed down, the applicant
also may, of his own initiative, reformulate the application requesting the granting
of a right different from that initially requested.
3. Once a refusal has been handed down, the applicant, during the appeal period
or, if this is interrupted, until a final decision is reached, may assign the rights
deriving from the application, limit the application itself or file any additional
documents or declarations.
4. In the case referred to in the previous paragraph, any other interested party
may also contribute documents or declarations to the file with a view to a possible
court appeal.
5. In the cases foreseen in paragraphs 1 and 2, the application shall be re-published
in the Official Bulletin, and the applicant shall be accorded the priorities to
which he was entitled.
6. Other formal rectifications may be authorized up to the moment of the decision,
provided that they are requested with sufficient grounds and are properly published.
(Rectification)
Whenever, before the publication of the notice in the Official Bulletin, the
existence of any irregularity or inadequacy is found, the applicant shall be notified
thereof so that, within 1 month, he may make the necessary rectifications.
(Recognition of signatures)
Signatures on documents not submitted by an appointed lawyer or a person entered
in the register of qualified agents shall be legally certified.
(Notifications)
1. The DES shall immediately notify parties involved in the process of any complaints,
oppositions, interpretations, expiry requests and other procedural items contributed to the
proceedings.
2. Notices of complaints, oppositions and expiry requests shall be published
in the Official Bulletin for information purposes.
(Copies of the expositions)
Any complaints and other similar procedural items shall be accompanied by as
many copies containing reproductions of all the documents that accompanied the original,
as there are parties involved in the proceedings, as well as an additional copy
to be kept on file and subsequently used as a basis for revising the proceedings,
should that be necessary.
(Compilation and return of documents)
1. The documents shall be appended to the brief in which the facts referred to
are alleged.
2. If it can be demonstrated that was is impossible to obtain them in good time,
documents submitted after the deadline may still be appended to the proceedings,
on the basis of a founded ruling and notification thereof to the opposite party.
3. Even if submitted in good time, the inclusion of the following will always
be refused:
a) Impertinent or unnecessary documents, including the useless repetition of
allegations already produced;
b) Any documents written in disrespectful or improper terms.
4. The parties or their respective agents shall be notified to remove items refused,
that are untimely or for the reasons given in the previous paragraph, within 5 working
days, failing which they will be filed and excluded from the proceedings.
(Inspections)
1. An interested party may, with clearly stated reasons, request the DES to conduct
an inspection of any establishment or other place, in order to support or to explain
allegations produced in the process.
2. This request shall not be granted without hearing the other interested party
which shall be notified for this purpose within 3 working days from when the DES
received the request to conduct the inspection.
3. The cost of the inspection shall be financed by the requesting party.
4. The party that requested the measure may freely renounce it up to the day
before it is scheduled.
5. The sums paid shall be returned to the requesting party should it suddenly
foreswear or refuse the inspection request.
6. Refusal by any of the parties to a proceeding to co-operate with a request
from the DES that they clarify the situation shall be freely appreciated in the
decision, notwithstanding the fact that the onus of proof will fall on the counter-party
if the requesting party that bears the onus of proof by inspection is thus deprived
of the possibility of obtaining that proof..
7. An inspection may also be conducted on the initiative of the DES, whenever
this appears indispensable for the proper clarification of the subjects raised in
the proceedings.
(Unofficial amendment of the decision)
1. If, before the publication of a ruling, it is recognized that it should be
amended, the proceedings shall be referred to a superior ruling, with information
on the facts that have come to light and which mitigate in favour of an amendment
to the decision handed down.
2. By a superior ruling is understood that issued by the hierarchical superior
to the authority that effectively handed down the decision to be amended.
(Alteration of unessential elements)
1. Any alteration or correction that does not affect the essential and characteristic
elements of the patent or the registration may be authorized in the proceedings
themselves provided they are well founded and duly published.
2. No request for an amendment or correction as foreseen in the present article
can be received if any forfeiture proceedings are pending in relation thereto.
3. The amendments or corrections referred to in paragraph 1 above shall be duly
recorded in the respective documents.
(Documents appended to other proceedings)
1. With the exception of powers-of-attorney that are always appended to each
proceeding even when the applicant is represented by the same agent, the documents
filed to provide information on the applications may be appended to just one of
the proceedings and just referred to in the others.
2. In the case of appeal, the appellant shall, at his own cost, by means of certified
copies, complete the files for all proceedings in which such documents have been
mentioned [but not appended].
3. Failure to meet the conditions set in the previous paragraphs shall be mentioned
in the official letter referring the proceedings to judgment, the deadline for which
cannot be exceeded for that reason.
(Delivery of the title-deeds)
1. The industrial property right title-deeds shall be delivered to the interested
parties only after the end of the appeal period or, if this is interrupted, after
the final court decision is known.
2. The title-deeds shall be delivered to the title-holder or his agent, against
receipt.
(Counting deadlines)
1. Unless otherwise stipulated, the deadlines set in the present Statute shall
be continuous.
2. The maturity of annuity payment, renewal and revalidation deadlines shall
be is communicated to the title-holders in advance, merely for the sake of informative.
(Full restitution)
1. An applicant or industrial property title-holder that, through no fault of
his own and despite all the vigilance demanded by circumstances, has been unable
to respect a deadline which could incur the refusal or affect the validity of that
right, shall have his rights restored provided that, cumulatively:
a) He submits a written and duly founded application within 2 months of the date
of cessation of the hindrance;
b) He performs the omitted act within the period referred to in the previous
paragraph, and pays the fee due in respect of the said act.
2. The application referred in the previous sub-paragraph is admitted only within
a maximum of 1 year from the date of the unobserved deadline.
FEES
(Fees due)
1. Fees shall be due for the various acts contemplated in the present Statute
as determined by a ruling of the Governor, to be published in the Official Bulletin.
2. Each separate act of issue of an element to complement a requests for the
granting of a right shall incur the payment of the fee foreseen for that purpose.
(Forms of payment)
1. The payments shall be made in cash, by cheque or postal order together with
the applications for the acts provided for in notices to be published by the DES
in the Official Bulletin.
2. Except as provided in the previous paragraph, payment of the application transmittal
fee may be made within 8 working days of the transmission to the DES.
(Calculation of periodic fees)
1. Annual fees relating to patents, the registration of semiconductor product
topographies and the relative five-yearly fees for the registration of drawings
and models shall be calculated from the dates of the respective applications.
2. Annual fees relating to complementary protection certificates shall be calculated
from the day following the expiry of the validity of the respective patent.
3. Periodic fees for all other registrations shall be calculated from the date
of the respective granting.
4. Whenever, due to a court decision or the application of transitory provisions,
the date of commencement of validity of patents or registrations does not coincide
with the date resulting from the application of the previous paragraphs, the respective
annual or periodic fees shall be calculated from the date of commencement of validity.
(Payment period)
1. Fees in respect of the first two annuities due in respect of patents and registrations
of semiconductor product topographies and the first five-year payment due for the
registration of designs or models shall be deemed included in the application fees,
except when article 39(4) applies.
2. Subsequent annual and five-yearly fees shall be paid within the 6 months preceding
their respective expiry, even if the rights have still not been granted.
3. The first annual fee relative to complementary protection certificates shall
be paid within the last 6 months of validity of the respective patent and the subsequent
annual fee shall be paid within the last 6 months preceding their respective expiry.
4. When the period of validity of the complementary protection certificate is
less than 6 months, no annual fee need be paid.
5. Fees relative to other registrations not covered by paragraph 1 above shall
be paid:
a) Together with those for the respective title-right, after the date of grant
up to a maximum period of six months after the date of publication of the grant
in the Official Bulletin;
b) In the final 6 months of respective validity, in the case of fees for the
renewal of a registration.
(Surcharge and revalidation)
1. The fees mentioned in the previous article may be paid, with a surcharge,
up to a maximum of 6 months after expiry of the validity of the right, failing which
the industrial property rights shall lapse.
2. The revalidation of any patent or registration that has lapsed due to failure
to pay the fees may be requested within 1 year of the date of expiry of validity.
3. The revalidation referred to in the previous paragraph can be authorized only
on payment of triple the fee owing and notwithstanding third-party rights.
(Reduction of fees)
1. When applicants can prove that they do no t have sufficient income to bear
such expenses, the fees due in respect of applications for patents and registrations
of semiconductor product topographies and models and designs and for the maintenance
of such rights may be reduced in accordance with terms to be set by a ruling of
the Governor, to be published in the Official Bulletin.
2. The ruling referred in the previous paragraph shall also set the periods for
which such fee exemptions or reductions shall apply to patent applicants or holders
who have called for public tenders for exploitation of the invention.
(Refunding of fees)
1. The fees referred to in the previous articles shall not be refunded to the
parties except when it can be proven that they were improperly paid.
2. The refund referred in the final part of the previous sub-paragraph shall
be determined by a ruling of the Director of the DES, on the request of the interested
party.
(Suspension of payment of fees)
1. If legal action concerning any industrial property right is pending or if
seizure or attachment could be declared in respect thereof, the said right shall
not be declared forfeit for default in the payment of periodic fees that may have
fallen due.
2. Once any of the decisions referred in the previous paragraph have become res
judicata, the DES shall have the fact published in the Official Bulletin and all
fees owing shall fall due for payment without any surcharge within 1 year of the
date of publication.
3. If on expiry of the deadline set in the previous sub-paragraph, the outstanding
fees have not been paid, the respective industrial property right shall lapse.
4. As soon as the legal action has ended or the seizure or attachment has been
lifted, the court registrar shall ex officio or at the request of the party, officially
inform the DES for the purpose provided in paragraph 2 above.
(Rights belonging to the Territory)
Industrial property rights belonging to the Territory shall be subject to the
formalities and duties stipulated in respect of an application, the grant and the
respective renewals and revalidations thereof, when exploited or used by companies
of any kind.
(Use of the fees)
Of the fees collected under the terms of the present Statute, 40% shall constitute
revenue of the Territory, and 60% shall go to the Industrial Development and Marketing
Fund.
EXTINCTION OF INDUSTRIAL PROPERTY RIGHTS
(General causes of nullity)
Industrial property rights shall be total or partially null and void when:
a) The subject matter cannot be protected;
b) The subject matter violates the rules of public order or of good mores;
c) The procedures or formalities essential for the granting of the industrial
property right were not performed.
(General causes of annulment)
1. The industrial property rights shall be total or partially annulled if they
violate the provisions that define to whom the industrial property right belongs
and, in general, if their granting infringes the rights of third parties based on
priority or other legal title.
2. If the legal conditions are met, the interested party may, instead of annulment,
request the total or partial reversion of the title to him.
3. Unless otherwise provided, annulment suits should be filed before the General
Court (Tribunal de Competência Genérica) within 1 year of the appellant learning
of the fact on which the suit is based.
4. The right to request the annulment of a title obtained in bad faith shall
not be subject to the statute of limitations.
(Procedure for a declaration of nullity or annulment)
1. A declaration of nullity or annulment can result only from a court decision.
2. Action shall be taken by the Public Prosecution Service or by any interested
party against the registered title-holder and notice shall also be served on anyone who, on the
date of the publication of the notice of action, has applied to the DES to register
rights derived there from.
3. The Court Registrar shall inform the DES that a suit has been filed and when
the case will be heard, sending it a typewritten copy or a copy on a medium deemed
appropriate for the purpose of the present Statute.
(Effects of the declaration of nullity or annulment)
The declaration of nullity shall not prejudice effects arising from the
fulfilment
of commitments, court decisions in res judicata or transactions, even if they have
not been ratified, or as a result of other similar acts.
(General causes of forfeiture)
1. Industrial property rights shall be forfeited:
a) on expiry of the period of validity;
b) in default of payment of fees;
c) if waived by the title-holder.
2. The causes of forfeiture envisaged in sub-paragraphs (a) and (b) above shall
apply automatically regardless of publication.
3. The general cause of forfeiture envisaged in sub-paragraph (c) above and the
other specific causes of forfeiture envisaged in the present Statute shall not take
effect automatically but may be invoked by any interested party in court or out.
4. Any interested party may also require the registration of forfeiture for reasons
that apply automatically, if that has not been done.
(Applications for a declaration of forfeiture)
1. Applications for declarations of forfeiture shall be submitted to the DES.
2. Save in cases where the title-holder waives the right, the title- holder shall
be notified of the application for a declaration of forfeiture in order to have
the opportunity, if so desired, to respond within 2 months.
3. On the request of the interested party, presented in good time, the period
referred to in the previous paragraph may be extended by 1 additional month.
4. Further extensions for like periods can be granted only if no express opposition
is raised by the other party and if justified by cogent reasons.
5. Once the response period has elapsed, the DES shall, within 1 month, decide
on the declaration of forfeiture of the patent or registration.
(Renunciation)
1. The title-holder may renounce his applications for the granting of industrial
property rights as well as any industrial property rights he may own, by so requesting
the DES in writing.
2. The renunciation may be partial when the nature of the industrial property
right so permits.
3. If the renunciation application is not signed by the interested party, the
respective le gal representative shall file a power-of-attorney with special powers.
4. Renunciation shall not prejudice duly registered third-party rights provided
that the respective title-holders, after due notification, substitute the holder
of the main right for the purpose of preserving the rights to the extent necessary
for safeguarding those rights.
5. Once the renunciation of the application has been confirmed, the rights inherent
therein shall also be forfeited.
INDUSTRIAL PROPERTY REGISTRATION
(Jurisdiction and purpose)
1. The Industrial Property Register shall be kept on computer by the DES in order
at any time to be able to provide information on industrial property rights granted,
as well as on any act amending or nullifying them.
2. No details of the application for the granting of an industrial property right
shall be entered in the Register prior to publication, except on the express authorization
or request of the applicant, and without prejudice to the provisions of article
22.
(Register of approved agents)
The Industrial Property Register shall be supplemented by a Register of Agents
for the purpose of ensuring that the public know of the persons referred to in the
final part of article 20 (1(b)) and of any limitations on their respective powers, as well as of the Macao industrial
property agents authorized by the DES, and of the official property agents of other
countries that are accredited to function in the Territory under the terms of the
applicable law.
(Elements relevant to the registration of rights granted)
1. The registration of industrial property rights granted shall include:
a) The type of right at issue;
b) The name or style of the title-holder or holders;
c) The number allocated to the title;
d) The date of commencement of validity;
e) The title or short title that synthesizes the subject matter of the invention
or the topography and a description of the respective subject matter;
f) The reproduction of the subject of the design, model, trademark or emblem
registered.
2. The Director of the DES may determine the inclusion of other elements in the
registration beyond those referred to in the previous paragraph, provided that the
limitations or prohibitions applicable to disclosure to the general public be safeguarded.
(Facts subject to registration)
1. The following items are subject to registration by being written on the title
and mentioned in the respective granting register:
a) The transmission of industrial property rights;
b) The granting of exploitation licences;
c) Declaration of public calls for tender to exploit inventions, as well as their
respective withdrawal or forfeiture;
d) The constitution of rights of warranty or usufruct, as well as seizure and
attachment;
e) Lawsuits for nullity or annulment of rights;
f) Amendments of acts performed under article 32;
g) Any other facts or decisions that modify or extinguish industrial property
rights.
2. The facts referred to in paragraph 1 above may be raised by the parties or
their successors at any time but shall produce effects in relation to third parties
only after having been registered.
(Initial steps and formalities)
1. The registration shall be effected on application by any of the interested
parties accompanied the documents bearing out the facts to be registered.
2. If the registration of the assignment be requested by the assignor, the assignee
shall also sign the document giving proof thereof or shall expressly declare acceptance of the
assignment.
3. After the registration has been effected, the certificate shall be returned
to the requesting party and the request and supporting documents shall be appended to the respective
file.
4. The DES may, ex officio, have the obligatory granting of exploitation licences
registered, as well as the legal actions referred to article 57(1(e)).
(Access to the registers)
The registers referred to in articles 54 and 55 shall be public and anybody may
by name request a certificate of registrations effected, documents filed and of
decisions published, as well as indication of the date on which any of the publications
mentioned in the present Statute were issued.
TYPES OF INDUSTRIAL PROPERTY RIGHTS
INVENTIONS
GENERAL PROVISIONS
OBJECT OF PROTECTION
(Subject matter of protection)
Only inventions meeting the patentability requirements set forth in the present
sub-section can be protected under the present Statute, by the granting of a patent
certificate.
(Patentability requirements)
Any inventions, in any area of technology, pertaining to products or processes
for obtaining products, substances or compositions, even if they involve a product
composed of biological matter or that contains biological matter or a process that
permits the production, processing or use of biological matter, shall be patentable
provided that such inventions:
a) Be novel;
b) Involve an inventive step; and
c) Be industrially applicable.
(Exceptions and limitations to patentability)
1. The following shall not be patentable:
a) Discoveries, as well as scientific theories and mathematical methods;
b) Materials or substances already existing naturally and nuclear matter;
c) Aesthetic creations;
d) Schemes, rules and methods for performing mental acts, playing games or doing
business as well as computer programs, as such;
e) Presentation of information.
2. Likewise, the following cannot be patented:
a) Inventions whose commercial exploitation would be illegal, contrary to public
order, public health or morality;
b) Methods for the surgical or therapeutic treatment of the human or animal body
and methods of diagnosis applied to the human or animal body, excluding products,
substances or compositions used in any of those methods;
c) Plant varieties or breeds of animal, as well as essentially biological processes
for the production of plants or animals.
3. Pursuant to sub-paragraph 2(a) above, the following are specifically not patentable:
a) 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;
b) Human cloning processes;
c) Human germinal genetic identity modification processes;
d) The use of human embryos for industrial or commercial purposes;
e) Processes for the modification of the genetic identity of animals that can
cause them suffering without any substantial medical benefit to mankind or animal
kind, as well as the animals obtained by those processes.
4. The provision in paragraph 1 excludes patentability only when the object for
which the patent is requested is limited to the elements mentioned therein as such.
5. For the purposes of sub-paragraph 2(a), patentability of the invention cannot
be excluded by the simple fact that the commercial exploitation thereof is prohibited
by Law or regulation.
(Special cases of patentability)
1. The provisions of the previous article shall not exclude the patentability
of:
a) A substance or composition included in the prior art which is used in the
working of one of the methods mentioned in paragraph 2(b) of the same article, provided
that its use for any of the methods mentioned therein is not included in the prior
art;
b) Any isolated element of the human body or produced in some other way by a
technical
process, including the sequence or partial sequence of a gene, even if the structure
of that element is identical to that of a natural element;
c) An invention whose object is plant or animal matter if its technical feasibility
is not limited to a certain plant variety or animal species;
d) A biological substance isolated from its natural environment or produced on
the basis of a technical process, even if it pre-exists in the natural state;
e) An invention, the object of which is a microbiological or other technical
process or products obtained by such processes.
2. For the purposes sub-paragraph 1(b) above, the industrial application of a
sequence or of a partial sequence of a gene must be concretely stipulated in the
patent application.
(Biological processes and biological matter-definitions)
For the purposes of articles 62 and 63:
a) An essentially biological process for obtaining plant or animal matter shall
be understood as any process that consists entirely of natural phenomena such as
crossing or selection;
b) A microbiological process shall be understood as any process that uses microbiological
matter, that involves the manipulation of microbiological matter or that produces
microbiological matter;
c) Biological matter shall be understood as any matter that contains genetic
information and can reproduce itself or be reproduced in a biological system.
(Prior art)
1. An invention shall be considered novel when it is not known in the prior art.
2. Prior art comprises everything that, inside the Territory or outside it, has
been made accessible to the public before the date of the patent application, by
description, use or any other means.
3. Prior art shall also be considered to include the content of patent applications
filed at a date prior to that on which the patent in question is applied for and
which produce effects in the Territory and is not yet published.
(Inventive step)
An invention is considered to involve an inventive step if, for a person skilled
in the art, the result is not obvious from the prior art.
(Industrial application)
An invention is considered industrially applicable if its subject matter can
be manufactured or used in any type of industrial or commercial activity.
(Non-opposable disclosures)
1. The following shall not prejudice the novelty of the invention:
a) Disclosures to scientific societies, professional technical associations,
or for the purpose of competitions, exhibitions and trade fairs in Macao or abroad
which are official or officially recognized, if the application for the granting
of the respective patent be filed in the Territory within 12 months;
b) Disclosures resulting from obvious abuse of the inventor or his successor
in any capacity, or if improperly published by the DES.
2. The provision of sub-paragraph 1(a) above shall apply only if the applicant
proves, within 3 months from the filing date of the patent application, that the
invention was effectively disclosed in the conditions envisaged in the paragraph
in question.
PATENT ENTITLEMENT
(Patent right)
1. The patent entitlement shall lie with the inventor or his/her successor in
any capacity, except where otherwise provided for inventions discovered while fulfilling
a contract of employment.
2. If the invention was discovered by two or more persons, any one of them shall
be entitled to apply for the patent in the name of all of them.
(Invention discovered in the context of an employment contract)
1. Anyone discovering an invention during the fulfilment of an employment contract
shall inform the company of the fact within the following deadlines:
a) 2 months from the completion of the invention;
b) 1 month from the filing of the patent application with the DES, if this was
done within the period referred to in the previous sub-paragraph;
c) 1 month from the filing of the patent application with the DES, in the cases
foreseen in the following paragraph.
2. Inventions for which the patent is filed within 1 year of the date on which
the inventor leaves the company shall be presumed to have been discovered during
the fulfilment of the employment contract.
3. The non-performance of the obligation referred in paragraph 1 above shall
incur third-party liability, in general, and, if the employment contract has not
terminated, a liability under labour law.
4. The company and the inventor shall refrain from any act of disclosure likely
to prejudice the acquisition of the patent entitlement.
(Attribution of entitlement to the invention)
1. The entitlement to the invention referred to in the previous article shall
lie with the company if the invention forms part of its area of activity and if
it was discovered in the process of:
a) an employment contract containing a clause that explicitly provides for the
performance of an inventive activity and that effectively corresponds to the functions
attributed to the employee;
b) Studies or research that the worker was explicitly requested to conduct.
2. Entitlement to the invention shall also lie with the company, even though
the invention does not fall within its area of activity, if the employee has used
knowledge, technical means or data supplied by the company.
3. In situations not provided for in the previous paragraphs, entitlement to
the invention shall lie with the employee.
(Inventor's remuneration)
1. In the cases provided for in article 71(1) and (2), the inventor shall be
entitled to remuneration in keeping with the relevance of the invention, if the
inventive activity is not especially remunerated under the terms of the employment
contract or in a written document.
2. The company shall loses the right to the patent, in favour of the inventor,
if the remuneration due the inventor is not fully paid to him within the deadline
established by the parties.
3. In the absence of agreement on the amount of remuneration, the subject shall
be settled by arbitration.
4. All relevant circumstances shall be considered in determining the amount of
remuneration, and more especially:
a) the financial value of the invention and its contribution to the growth or
recovery of the company;
b) the personal effort made by the inventor and the assistance that he received
from other employees in discovering the invention;
c) the financial capacity and size of the company;
d) The wage and other benefits that the company pays the inventor.
(Inadmissibility of prior renouncement)
The rights accorded the inventor under the preceding articles may not be renounced
in advance.
(Most favoured regime)
The regime established in the employment contract shall take precedence over
the provisions of articles 70 to 72 if the contract contains a regime globally more
favourable to the inventor.
(Right of the inventor to be named)
1. If the patent application is not filed in the name of the inventor, he shall
be entitled to be mentioned as such in the application and on the patent certificate.
2. The name of the inventor need not be mentioned as such in the publications
arising from the application if he so requests in writing.
(Application to public entities)
Unless otherwise stipulated, the provisions of the present sub-section shall
within the Territory, apply in relation to its employees, agents and other servants
in any capacity.
THE PATENT PROCEDURE
(The form of request)
1. The patent request shall be written in the official language of the Territory
indicating the name or style of the applicant, his/its nationality and domicile
or place of residence, and shall be accompanied by the following items in triplicate:
a) The title or short title briefly synthesizing the subject matter of the invention;
b) A description of the subject matter of the invention;
c) Claims of what is considered novel and what characterizes the invention;
d) Mention of the priority right, if appropriate, pursuant to article 17(3).
2. The description shall indicate, briefly and clearly, without reservations
or omissions, everything that constitutes the subject matter of the invention, containing
a detailed explanation of, at least, one way of realizing the invention, in such
a way that a person skilled in the art could realize it.
3. The claims shall define the subject matter of the requested protection and
shall be clear, concise, written correctly, based on the description and, when appropriate,
contain:
a) A preamble mentioning the subject matter of the invention and such technical
features of the invention as are necessary for the definition of the claimed subject
matter but which, in combination, are part of prior art;
b) A characterizing portion, preceded by the expression «characterized by» and
stating the technical features which, in combination with the features stated in
the previous sub-paragraph, define the extent of the requested protection.
4. Any fantasy expressions used to designate the invention shall form no part
of the claim.
(Description of biotechnical inventions)
Should an invention claim to refer to biological matter that is not accessible
to the public and that cannot be described on the patent form in such a manner as
to permit its realization by a person skilled in the art, or to involve the use
of matter of that type, the description alone shall be considered enough for the
purpose of obtaining the patent, if:
a) The biological matter has, by the date of submission of the patent request,
been deposited in a recognized depositary institution, on the conditions to be defined
in a ruling by the Governor, and published in the Official Bulletin;
b) The patent request includes the relevant information of which the applicant
disposes concerning the characteristics of the deposited biological matter;
c) The patent request mentions the depositary institution and the deposit number.
(Additional elements of the request)
1. The elements referred in article 77 and, if appropriate, in the preceding
article, should be supplemented by the following documents:
a) A summary of the invention;
b) Drawings necessary for the perfect understanding of the description;
c) The name and country or territory of the inventor's place of residence;
d) Proof of payment of the request submission fee.
2. If appropriate, the following shall also be submitted:
a) Documents proving the claimed priority right;
b) The declaration by which the inventor opposes the disclosure of his identity;
c) A summary declaration on the facts that justify title to the patent, when
the applicant was not the inventor or the only inventor;
d) Any translations that may be necessary, specifically in the light of the regulations
referred to in article 85(3).
3. The drawings should comprise strictly illustrations in such numbers as are
necessary to the understanding of the invention.
4. The abstract of the invention, to be published in the Official Bulletin, shall
merely serve the purpose of providing technical information and cannot be taken
into account for any other purpose, particularly not for the purpose of interpreting
the scope of the protection sought and it shall consist in a brief exposé of what
is referred to in the description, claims and drawings and should preferably not
contain more than 150 words or 400 characters.
(Unity of request and invention)
1. No more than one patent may be requested in the same application and only
one patent may be requested for an invention.
2. A plurality of inventions inter-related amongst themselves in such a way as
to constitute a single general inventive concept shall be considered a single invention.
3. Under the terms of the previous paragraph, it is permitted to include in the
same request, specifically:
a) An independent claim for a product, an independent claim for a process especially
evolved for the manufacture of that product and, moreover, an independent claim
for a process especially evolved for a use of that product;
b) An independent claim for a process and an independent claim for a device or
mechanism evolved especially to perform that process;
c) An independent claim for a product, an independent claim for a process and
an independent claim for a device or mechanism especially devised to execute that
process.
(Multiple priorities)
1. Multiple priorities can be claimed for a patent request, provided that the
priorities come from different countries or territories, the deadlines relating
to the priority being calculated from the date of the oldest priority.
2. Where appropriate, multiple priorities may be cited for a same claim.
3. When one or more priorities are claimed for the patent request, the priority
right shall include only those elements of the patent request contained in the request
or requests whose priority is claimed.
4. If some of the elements of the invention for which priority is claimed are
not included
among the claims formulated in the previous request, it shall suffice, in order
that the priority may be considered, that all the documents of the previous request
accurately reveal the elements referred to.
(Examination as to form)
1. Once the request has been received, the DES shall proceed to its formal examination,
within a period of 2 months, to verify that it contains all of the elements required
in accordance with articles 77 to 79.
2. If the request does not contain some of the elements required, or if they
are in any way irregular, the applicant shall have 2 months from his being notified
to that effect by the DES in which to make the necessary rectification or, should
he not be so notified, a maximum of 4 months from the filing of the request, either
deadline being extended by a further 2 months, if so requested with good reason.
3. The date that establishes the priority of the presentation, for the purposes
of article 15, shall be that on which the elements referred to in articles 77 and
78 are submitted complete and the DES shall then, if the applicant so requests,
issue the relevant submission certificate.
4. During the formal examination phase foreseen in the present article, the fact
that the request does not respect the requirements set forth in article 80 shall
not prevent its being received.
5. Failure to send the notification referred to in paragraph 2 above, as well
as its non-reception, shall not, for the purpose of granting the patent, relieve
the applicant from making good the indicated irregularities within the legal deadline.
6. If, within the deadline applicable under paragraph 2, it is found that the
inadequacies or irregularities in the request were not rectified, the request will
be refused and a notice to that effect will be published in the Official Bulletin,
in which case there shall be no need to publish the notice foreseen in the following
article.
(Notice of disclosure to the public)
1. Once 18 months have elapsed from the date of submission of the request or,
if a priority right was claimed, from the claimed date, the DES shall have the disclosure
notice published in the Official Bulletin and the request proceedings shall be available
to the public from that date.
2. The proceedings may be published before the end of the deadline referred to
in the previous sub-paragraph, should the applicant so request, and once:
a) at least 2 months have elapsed from the submission of the patent request;
b) the request is not pending regularization, as envisaged in article 82.;
c) the early request fee has been paid.
(Objections)
1. From the publication of the disclosure notice until the date when the patent
is awarded, any third-party may approach the DES in writing with objections to the
patentability of the invention in respect of which the request was filed.
2. The objections shall be transmitted to the applicant, which may respond within
4 months of the notification of such objections.
(Examination report and designated entities)
1. The invention examination report, to be prepared by one of the designated
entities, shall look into the claims in their latest formulation and, when appropriate,
the drawings included with them for the purpose of specifying the elements of prior
art that should be taken into consideration in determining the novelty of the invention,
as well as appreciating inventive step.
2. The designated entities are the European Patent Institute and any others specified
by a ruling of the Governor and published in the Official Bulletin.
3. The ruling referred in the previous paragraph may include or determine the
publication of procedural standards with a view to the proper performance of co-operation
agreements concluded with the designated entities, and more specifically with respect
to the languages to be used in the documents and/or to the translations that should
be submitted by the applicants.
(Examination of the invention)
1. On pain of having the patent request refused, the applicant shall, within
7 years of the date of filing of the main request or of the several requests provide
the DES with:
a) A request that an examination report be conducted by one of the designated
entities;
b) An examination report conducted by one of the designated entities, if the
object of such report is the invention for which the granting of a patent in Macao
is being requested;
c) One or more examination reports conducted by one of the designated entities,
if such report or reports concern one or more similar patents or industrial property
certificate requests whose priority is being claimed for the Macao patent application,
or that claim the same priorities as does the Macao patent application, or else
that claim the priority of the Macao patent application.
2. In the case envisaged in the sub-paragraph 1(c) above, the applicant should
include an authenticated copy of the patent requests or similar industrial property
certificates referred to and the DES shall be entitled to demand a translation into
one of the official languages of the Territory.
3. The designated entity shall prepare the examination report on that part of
the patent application relating to the main object of the claims and to those parts
of the patent application for which additional examination fees have been paid in
the set deadlines.
4. The parts of the application for which the additional examination fees have
not been paid within the set deadlines shall be considered to have been withdrawn,
if they do not form part of a divisible application.
5. The request for the preparation of an examination report shall specify the
parts of the patent request to which the documents mentioned in sub-paragraph 1(b)
or (c) above refer.
6. The applicant shall be relieved of submitting the elements referred in the
previous paragraphs if the patent request has been filed by a third party pursuant
to the following article.
(Examination report request filed by a third party)
1. Starting from the date of disclosure to the public of the patent application
proceeding, anyone may request the preparation of the examination report referred
to in the previous article, if the applicant has not done so within 7 years from
the date of submission of the patent application.
2. The applicant shall be notified of a request by a third party under the terms
of the previous paragraph, and shall receive a copy of the examination report whereupon
he may avail himself of the facility provided for in article 89.
(Rejection of an examination report request)
The request for the conduct of an examination report shall be rejected when:
a) It is not accompanied by proof of payment of the examination fee;
b) It does not meet other requirements stipulated in the present Statute;
c) The patent application is in the process of rectification, as provided in
article 82.
(Amendments to claims, description or drawings)
1. The applicant shall be entitled to make amendments to the claims, description
and drawings:
a) Once only up to the filing of the request for the conduct of the examination
report or up to the reception by the DES of the documents referred to in article
86(1(b) and (c);
b) Once only after the filing with the DES of the documents referred to in article
86(1(b) and (c) or following reception of the examination report;
c) Once only where a divisible application is filed.
2. A patent application cannot be amended in such a way that its subject matter
exceeds the content of the application as originally submitted.
3. The right to amend provided for in the present article shall include the right
to adapt the title of the invention and the abstract, as well as to submit a short
comment.
4. The amendment right accorded under sub-paragraph 1(b) shall be exercised within
4 months following the occurrence of the facts referred to.
5. The amendment right accorded under sub-paragraph 1(c) may be exercised within
4 months following the presentation of a divisible application provided that it
does not exceed the deadline referred to in the previous paragraph.
6. Each amendment shall be subject to the payment of the fee set for the purpose.
(Rectification subsequent to the examination report)
1. If the designated entity does not follow up on the examination report because
certain sectors of the art have been temporarily excluded from their search activities,
or should it decide not to proceed with the search in the concrete case, the DES
shall notify the applicant of such decision, that notification substituting the
examination report for the purpose of granting the patent.
2. The DES shall also notify the applicant of the impossibility of producing
the examination report when the designated entity considers that:
a) the description, the claims or the drawings do not meet the established requirements,
so that no substantial search can be conducted;
b) The subject matter of the patent application does not fall within the concept
of an invention or of a patentable matter, or that it is not obliged, for other
reasons, to proceed with the search.
3. In the case referred in the previous paragraph, the applicant shall have 4
months from notification to correct the deficiencies of the patent application,
pursuant to article 89, and to repeat the request for an examination report.
4. If, following upon the renewal of the examination report request, the designated
entity considers
that it is unable to modify its conclusions regarding the patent application
as corrected,
the applicant may justifiably contest that decision.
5. The contestation referred in the previous paragraph shall not be admitted
if the nonpatentability of the invention has been demonstrated or if the contestation
was not presented within the deadline set for that effect by the DES or, where no
such deadline was set, by the end of the period referred to in article 86(1).
6. If, from the documents referred to in article 86(1(b) and (c)) it can be concluded
as indicated in sub-paragraph 2 above, or should those conclusions not meet the requirements
established in the present Statute or in the respective regulations, the DES shall
notifies the applicant of this fact, and the applicant shall have 4 months in which
to rectify the documents or to request that the examination report be established.
7. Examination report requests submitted under the terms of paragraphs 3 and
6 shall be refused if they are submitted after the expiry of the deadline referred
to in article 86(1).
(Divisible applications)
1. The applicant shall have the option of irreversibly dividing his application
and submitting it as one or more divisible applications, to which shall be correspondingly
limited the protection conferred by the initial application, if he himself or the
designated entity considers that the patent application does not meet the requirement
of unity of invention referred to in article 80.
2. The option referred to in the previous paragraph cannot be exercised during
the period between the examination report request and the reception of that report
by the applicant.
3. The limitation of the protection conferred on the initial application is effected
by the deletion of one or more claims, sentences in the description or drawings
or, exceptionally, in the form of an amendment to the claims, to the description
or to the drawings, pursuant to article 89.
4. The divisible applications can be submitted only if they fall within the scope
of the initial application submitted and shall, in that case, benefit from the priority
date allocated to the initial application and the corresponding priority right.
5. The presentation of a divisible application shall require payment of the fees
due for the presentation of a patent application, as well as of the annuities that
fall due after the date of presentation of the initial application, according to
the rates applicable at the time of the presentation of the divisible application.
6. Once a divisible application has been published, anyone may consult the initial
application proceedings even before they are published and even without the consent
of the applicant.
(Divisible application following upon legal action)
When a patent has been granted disregarding the requirement of unity of invention
and this omission has been legally confirmed in response to a suit brought by a
third party, the patentholder shall, on pain of finally losing the rights not directly
relating to the main subject matter of the patent, submit one or more divisible
applications.
(Deadline and content of the divisible application)
1. The divisible application may be submitted only within a deadline of 4 months
from:
a) The performance of the acts envisaged in article 89(1(b));
b) A court decision, in the case envisaged in the previous article.
2. An examination report request shall be submitted for each divisible application
within 7 years of the date of the submission of the initial application.
3. If the divisible application be submitted after the deadline set in the previous
paragraph, it should thenceforth be accompanied by the examination report request,
on pain of being refused.
(Access to deposited biological material and substitution thereof)
1. Access to deposited biological material shall be ensured by provision of a
sample:
a) Until the first publication of the patent application, only to people who
have access to the proceedings;
b) Between the first publication of the application and the granting of the patent,
to anybody who so requests or, at the request of the depositor, only to an independent
expert;
c) After the granting of the patent, and even if the patent lapses because it
becomes invalid or is forfeited, to anybody who so requests.
2. The sample shall be delivered only if the person requesting it undertakes,
for the duration of the patent:
a) Not to provide third parties with any sample of the deposited biological material
or of any material derived therefrom;
b) Not to use any sample of the deposited material or any matter derived therefrom,
except for experimental purposes, save in the case of an express waiver by the applicant
or the patentholder of that commitment.
3. Should the patent application be refused or withdrawn, access to the deposited
material may, at the request of the depositor, be limited to an independent expert
for 20 years from the date of filing the patent application and, in this case, the
provision of the previous paragraph shall apply.
4. The applications of the depositor referred to in sub-paragraph 1(b) and in
the previous paragraph may be presented only until the date on which the technical
preparations for publication of the patent applications are considered completed.
(New deposit)
1. When the biological material deposited pursuant to the provisions in the preceding
article ceases to be available at the recognized depositary institution, a new deposit
of the material shall be permitted on the conditions envisaged in the Budapest Treaty
of 28 April 1977 on the International Recognition of the Deposit of Microorganisms
for Purposes of Patent Procedure.
2. Any new deposit shall be accompanied by a declaration, signed by the depositor,
certifying that the biological material forming the new deposit is identical to
that initially deposited.
(Withdrawal of application)
The applicant may withdraw the patent application at any time by submitting such
a request in writing together with a declaration confirming that he has informed
the inventor of the fact, in cases where the inventor is not the applicant, as well
as any person or persons to whom a licence has in the meantime been granted, which
licence has not yet been registered with the DES, or, if appropriate, indicating
that such confirmation is not applicable.
(Partial granting)
1. If it is just a case of removing drawings, sentences from the abstract or
from the description or altering the title or short title of the invention then,
in keeping with the notification, the DES may proceed with such amendments and have
a notice published to that effect provided that the applicant raises no express
opposition within 1 month of the said notification.
2. The publication in the Official Bulletin of the notice referred to in the
previous paragraph, with a transcription of the abstract, shall mention the alterations
made.
(Reasons for refusing the patent)
The patent shall be refused when any of the general grounds for refusal to grant
industrial
property rights is found to obtain, but the applicant may be refused a patent
on the basis of article 9(1) only if the non-patentability is obvious from the terms
of the examination report or if it was not possible to reach any conclusion on the
patentability because the elements accompanying the application did not permit the
patent to be granted because of their inadequacy, irregularity, contradiction or
confusion.
(Notification of grant or refusal of patent)
The granting or refusal of the patent shall be notified pursuant to article 20(2)
and (3) and shall be published in the Official Bulletin.
(Publication of the pamphlet)
Once the deadline set in article 34(1) has elapsed, the patent pamphlet can be
published.
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