The Patent Law, no 64/1991, republished
Text preluat de la OSIM - State Office for Inventions and Trademarks
Chapter I - General Provisions
Article no 1
The rights in inventions shall be recognized and protected on the territory of Romania by the grant of a patent by the State Office for Inventions and Trademarks under the conditions specified in the law.
The rights arising from the European patent shall also be recognized and protected according to the law.
Article no 2
For the purposes of this Law, the terms and the phrases below shall mean as follows:
a) European patent - the patent granted under the European Patent Convention;
b) patent application - the written application which contains the express request for the grant of a patent;
c) international application - the application for the protection of an invention, filed under the Patent Cooperation Treaty;
d) industrial property attorney - the person specialized in rendering assistance in the industrial property field (inventions, marks, industrial designs etc.), legally carrying out that activity;
e) European Patent Convention - the Convention on the Grant of European Patents concluded in Munich on the 5th of October 1973, with its subsequent amendments and revisions;
f) Paris Convention - Paris Convention for the Protection of Industrial Property of the 20th of March 1883, Paris as revised and amended;
g) description - the presentation of the invention in writing;
h) inventor - the person who created the invention;
i) professional representatives - the industrial property attorney who may also undertake representation in proceedings before the State Office for Inventions and Trademarks;
j) OSIM - the State Office for Inventions and Trademarks;
k) publication - dissemination of information in a manner accessible to the public;
l) applicant - the natural or legal person applying for the grant of a patent;
m) successor in title - any natural or legal person to whom either the right to the grant of the patent or the rights arising from a granted patent, was transferred;
n) claim - that part of the patent comprising the subject-matter of the requested protection, the contents of which determines the extent of the protection;
o) patent owner - the natural or legal person to whom the right conferred by the patent belongs;
p) employer - the legal person who functions legally;
q) person exploiting the invention - natural or legal person who applies it legally. The person exploiting the invention may be the same person as the patent owner.
Article no 3
The right to the patent shall belong to the inventor or his successor in title.
Article no 4
Where an invention has been made jointly by two or more inventors, each shall have the status of joint inventor and the rights shall belong to them jointly.
If two or more persons have made the same invention independently of one another, the right to the patent shall belong to the person who filed a patent application having the earliest date of filing, and where priority has been recognized, to the person whose patent application has the earliest priority date.
The provisions of the second paragraph shall apply only if the documentation related to the application or the patent, as the case may be, having the earliest date of filing or recognized priority was published pursuant to the law.
Article no 5
Where the inventor is an employee and there is no contractual provision more favourable to him, the right to the patent shall belong:
a) to the employer in the case of inventions made by the employee under a contract of employment that provides expressly for the performance of inventive activities, where the said activities correspond to his actual duties; the inventor shall be paid additional remuneration specified by contract;
b) to the employee for inventions made by him either in the course of his duties or within the area of concern of the employer, through knowledge or use of technology or means specific to the employer or information available on the premises of the employer, or again with material assistance from the employer, except where otherwise provided by contract.
Where the invention is the result of a research contract, unless otherwise provided the right to the patent shall belong to the employer who commissioned the research, the inventor being entitled to additional remuneration specified in an additional clause in the contract.
In the cases provided for in the first paragraph under (a) and (b) and in the second paragraph, the inventor and the employer shall be under the obligation to inform each other in writing of the making and the stage of development of the invention, and to abstain from disclosing it.
Failure to observe the obligation to inform shall result in the liability of the person responsible.
If, in the cases provided for in the first paragraph under (a) and in the second paragraph, the patent application has not been filed with the OSIM within 60 days of the employee's having informed the employer in writing of the contents of the description of the invention, the right to be granted a patent, in the absence of any other agreement between the parties, shall belong to the employee as provided in the first paragraph under (b).
In the case provided for in the first paragraph under (b), the employer shall have a preferential right to conclude a contract in respect of his employee's invention, which shall be exercised within three months of the date of the employee's offer; in the absence of agreement on the contract price, the latter shall be fixed by judicial decision.
Article no 6
Foreign natural or legal persons having their domicile or registered office outside the territory of Romania shall enjoy the benefits of the provisions of this Law in accordance with international treaties and conventions on inventions to which Romania is party.
Chapter II - Patentable Inventions
Article no 7
A patent shall be granted for any invention having as subject-matter a product or a process, in all technological fields, provided that it is new, involves an inventive step and is susceptible of industrial application.
Inventions in the field of biotechnology shall be patentable if relating to:
a) a biological material existing in natural environment or produced by any technical process, even if it used to be produced in nature before;
b) plants or animals, if the technical achievement of the invention is not limited to a certain variety of plant or animal breed;
c) a microbiological process or a technical process and a product, other than a variety of plant or animal breed, thus obtained;
d) an isolated element of the human body or otherwise produced by a technical process, including the sequence or partial sequence of a gene, even if the structure of that element is identical with the structure of a natural element;
Article no 8
An invention shall be considered to be new if it does not form part of the state of the art.
The state of the art shall be held to comprise all knowledge that has been made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the patent application or of recognized priority.
The state of the art shall be also held to comprise the content of the patent applications filed with OSIM and international or European applications designating Romania, as filed, of which the dates of filing or recognized priority are prior to the date referred to in the second paragraph and which were published under the Law on or after that date.
The provisions of the second and the third paragraphs shall not exclude the patentability of any substance or composition, comprised in the state of the art, for use
within a method for treatment of the human or animal body by surgery or therapy or within any diagnostic method practiced on the human or animal body, provided that its use for that method is not comprised in the state of the art.
The provisions of this article shall not exclude the patentability of any substance or composition referred to in the fourth paragraph, for any specific use in any method for treatment of the human or animal body, by surgery of therapy, or in any diagnostic method practiced on the human or animal body, provided that said use is not comprised in the state of the art.
Article no 9
Disclosure of the invention shall not be taken into consideration if it occurred within the six months preceding the filing of the patent application and if it was due to, or in consequence of:
a) an evident abuse in relation to the applicant; or
b) the fact that the applicant has displayed the invention at an official, or officially recognized, international exhibition organized in States parties to the international treaties and conventions to which Romania is party.
Article no 10
An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.
Patent applications referred - to in the third paragraph of Article no 8, although included in the state of the art, are not to be considered in deciding whether there has been an inventive step.
Article no 11
An invention shall be susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.
Article no 12
Patents shall not be granted under this Law in respect of:
a) inventions the commercial exploitation of which would be contrary to ?ordre public? or morality including inventions harmful to the health or life of persons, animals or plants and which are likely to seriously harm the environment, provided that such exception from patentability shall not depend merely on the fact that exploitation is prohibited by a legal provision;
b) varieties of plants and animal breeds;
c) essentially biological processes for the production of plants or animals;
d) inventions having as subject-matter the human body in its various stages of formation and development, and the mere discovery of one of its elements, including the sequence or partial sequence of a gene.
Article no 13
The following in particular shall not be regarded as inventions within the meaning of Article no 7:
a) discoveries, scientific theories and mathematical methods,;
b) aesthetic creations;
c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
d) presentations of information.
The provisions of the first paragraph shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a patent application or patent relates to such subject-matter or activities as such.
Chapter III - Registration, Publication and Examination of the Patent Application; Grant of the Patent
Article no 14
The patent application, comprising the personal particulars of the applicant, accompanied by a description of the invention, claims and where appropriate explanatory drawings, with all written matter in Romanian, shall be filed with the OSIM to constitute a regular national filing.
The patent application shall contain particulars serving to identify the inventor.
The patent application shall be filed by the person entitled to the grant of a patent either in person or in any manner specified by the Regulations Implementing this Law.
In all the proceedings before the OSIM, the applicant shall be regarded as the person entitled to the grant of the patent.
The patent application, accompanied by the documents specified in the first paragraph, shall be filed, at the applicant?s discretion, on paper or in any other form and by any means of forwarding accepted by the OSIM and prescribed in the Regulations Implementing this Law.
Article no 15
The date of filing shall be the date on which the following are registered with OSIM:
a) an application containing the explicit or implicit request for the grant of a patent;
b) information identifying the applicant or making possible for OSIM to contact him;
c) a part which should, at first sight, seem to be a description of the invention.
Where part of the description is missing, for the purposes of according the filing date, such part can be subsequently filed, the filing date being the date on which such part is filed and on which payment of the fee for the registration of that part is effected.
If the missing part of the description specified in the first paragraph under c), subsequently filed, has been withdrawn, the filing date shall be the date on which the requirements referred to in the first paragraph are fulfilled.
The conditions for the subsequent filing and those for the withdrawal of the missing part of the description, subsequently filed pursuant to the second paragraph, are laid down in the Regulations Implementing this Law.
Where the patent application does not comprise a part which, at first sight, seems to be a description, reference may be made in the patent application, in the Romanian language, to a prior application filed with the OSIM which replaces the description, observing the provisions of the Regulations Implementing this Law, for the purpose of according a filing date. In the absence thereof, the application shall not be treated as a patent application.
The patent application shall be registered in the National Register of Patent Applications. Until their publication in the Official Bulletin of Industrial Property, of the data comprised in the Register shall not be made available to the public, pursuant to the special law.
The claims and drawings relating to the invention may be filed within two months of the filing date of the patent application, provided that the prescribed fee is paid.
In the case of international patent applications and European patent applications, the filing date shall be the date resulting from the international treaties and conventions to which Romania is party and that date shall be registered in the National Register of Patent Applications.
Article no 16
Where the provisions of Articles 14 or the eighth paragraph of Article no 15 have been complied with the application filing shall have the effect of a regular national filing.
The provisions of the first paragraph shall also apply where, on justified grounds, foreign natural or legal persons have filed the description, claims and drawings in a foreign language, provided that within two months of the registration of the application or the date of opening the national phase, as the case may be, an accurate translation in Romanian of the said documents is filed with the OSIM and the prescribed fee is paid.
There shall be considered as complying with the requirements concerning the form and the content of an application under this Law:
a) international application complying with the requirements concerning the form and the content prescribed by the Patent Cooperation Treaty, adopted by the Diplomatic Conference in Washington on the 19th of June 1970, ratified by Decree no. 81 of the 2nd of March 1979 of the Council of State, with its subsequent modifications;
b) international applications complying with the requirements concerning the form and the content under the Patent Cooperation Treaty and required by the OSIM or the European Patent office , when acting on behalf of the OSIM after their processing or examination has begun.
Any other requirements regarding the form and the contents of the applications prescribed in the Regulation Implementing this Law shall also be observed.
The content of an application corresponding to the content of an international application form and to the accepted one, pursuant to the fourth paragraph, shall be presented on a prescribed application form, provided for in the Regulations Implementing this Law.
Article no 17
The filing of a patent application shall confer a priority right, starting on the date of the said filing or on the priority date claimed and recognized, in relation to any other filing of the same invention having a later filing or recognized priority date, provided that the provisions of the first paragraph of Article no 14 or the eighth paragraph of Article no 15 are fulfilled.
Article no 18
The invention shall be presented in a description, claims and drawings in a manner sufficiently clear, complete and correct from a scientific and technical point of view for a person skilled in the art to be able to make it.
The claims shall define the matter for which protection is sought for and shall be clear and concise and be supported by the description of the invention.
If the invention relates to a microorganism which was not made available to the public, the requirements provided for in the first paragraph shall be regarded as complied with only where the applicant produces a document attesting that, prior to the date of filing of the patent application or of the recognized priority, the microorganism was deposited with an international depositary institution.
Article no 19
A patent application shall relate to one invention only or to a group of inventions so linked as to form a single inventive concept.
Patent applications that fail to meet the condition specified in the first paragraph may be divided by the applicant, either on his own initiative or at the request of the OSIM, until such time as a decision has been made on the said patent applications.
An application resulting from the division shall only be filed for the elements that do not go beyond the content of the original application. Applications resulting from the division complying with that requirement shall be considered to have been filed on the filing date of the original application and shall enjoy the rights of priority claimed thereby.
Article no 20
A person who has duly filed in or for any State party to the Paris Convention for the Protection of Industrial Property or for any Member of the World Trade Organization, an application for a patent, utility model or utility certificate, or his successor in title, shall enjoy, for the purpose of filing a patent application in respect of the same invention, a right of priority during a period of twelve months of the date of filing of the first application.
Multiple recognized priorities may be claimed in respect of a patent application, provided that the time limit under the first paragraph and the unity of the invention referred to in Article no 19, are observed.
In the case provided for in the second paragraph the priority time limit period of twelve months shall run from the earliest date of recognized priority.
Priority may also be recognized for an application which claims or may have claimed the priority of an earlier application on a filing date subsequent to the expiry of the priority time limit, but no later than two months from the expiry of said time limit, against payment of the prescribed fee, provided that:
a) an express request to that effect is drawn up, under the conditions laid down by the Regulation Implementing this Law;
b) the application is drawn up within the prescribed time-limit;
c) the application presents the reasons why the priority time limit was not observed;
d) the OSIM finds that the subsequent application was not filed within the priority time limit, although concerned diligence was exercised, or non-observance of the time limit was unintentional.
Where the applicant claims a right of priority belonging to another person, for the purposes of recognizing the priority, an authorization shall be filed with the OSIM by the assignor, attesting the fact that the applicant is entitled to claim the priority of the first filing.
The authorization shall be filed within three months of the date on which priority was claimed, at the most.
Non-recognition of priority for failure to comply with the provisions of the fourth and the sixth paragraphs shall be determined by the OSIM within six months of the filing date.
Article no 21
Priority claimed in a patent application, as a result of having displayed the subject-matter of the invention at an official, or officially recognized, international exhibition, organized in States Members of the Paris Convention or the World Trade Organization, may be recognized from the date on which it was put on display at the exhibition.
The provisions of the first paragraph shall apply only if a patent application is filed within six months of the date on which the subject-matter of the invention was put on display at the exhibition.
The six-month period shall not extend the period of priority referred to in the first and the third paragraphs of Article no 20.
Article no 22
Priority as provided for in Articles 20 and 21 shall be claimed at the same time as the patent application is filed, and shall be attested by priority documents.
Where the applicant has failed to claim priority at the time of filing the patent application, he may claim it, pursuant to the provisions of the Regulations Implementing this Law, up to two months following that date, against payment of the prescribed fee.
Priority documents shall be filed within a time limit up to three months of the date of filing or, as the case may be, of the date of opening the national phase, and where the OSIM requires an accurate translation into Romanian of the earlier application, the provisions of the Regulations Implementing this Law shall be observed.
Failure to observe the time limits specified in the second and third paragraphs above shall result in refusal to recognize the priority claimed.
Non- recognition of priority for failure to observe the provisions of Articles 20 and 21 shall be determined by the OSIM, within six months as of the filing date or the date of opening the national phase for an international application.
Article no 23
Patent applications filed by the national route, for which the regular national filing has been effected, shall be published as soon as possible after the expiry of a period of eighteen months from the date of filing or, if priority has been recognized, as from the date of priority, except in the case provided for in the second paragraph of Article no 42.
Patent applications filed under the Patent Cooperation Treaty shall be published as soon as possible after the expiry of a period of six months from the opening of the national phase.
At the request of an entitled natural or legal person, publication may be effected within a shorter time than that prescribed in the first and second paragraphs, under the provisions of the Implementing Regulations to this Law.
Where the decision on the grant of the patent has been made before the publication of the application, it shall be published simultaneously with the publication of the mentioning of the grant decision, under the provisions of the second paragraph of Article no 25, the fourth and the fifth paragraphs of Article no 28 and of the second paragraph of Article no 42.
Patent applications referred to in the second paragraph of Article no 42 shall be published within three months from the date on which the secret of State status has been lifted.
The publication of the application shall be mentioned in the official Bulletin of Industrial Property, under the provisions of the Implementing Regulations to this Law.
Article no 24
The publication of patent applications may be accompanied by a search report.
If the search report is not published at the same time as the patent application, it shall be published subsequently under the provisions of the Implementing Regulations to this Law.
Article no 25
Examination of the patent application may be requested on the filing date of the patent application or, as the case may be, upon the opening of the national phase or within thirty months from one of these dates.
For patent applications classified as secret of State examination may be requested on the date of the patent application or within three months from the date on which such secrecy has been lifted, but no later than thirty months before the expiry of the period of protection under Article no 31.
Article no 26
The OSIM shall examine whether the patent applications satisfy the requirements of Article no 6, Articles 14 to 16 and 18, the priorities under Article no 17 and the ones claimed under Articles 20 to 22, the unity of invention provided for in Article no 19 and whether the subject matter of the invention is patentable in accordance with Articles 7 to 11, 12 and 13.
Article no 27
The OSIM is authorized to request the applicant to provide explanations or documents considered necessary in connection with the identity of the applicant or the inventor, with the regular national filing effected or in order to meet the conditions of patentability.
In all the procedures related to the patent application or the patent OSIM may send notifications to the applicant, the patent owner or the interested person, and they may send communications to the OSIM , observing the time-limits prescribed by the Implementing Regulations to this Law, time-limits that may be extended by OSIM upon request, against payment of the prescribed fee.
The absence of notifications does not absolve the applicant, patent owner or interested party from the obligation to meet the requirements of this Law.
The applicant shall file with the OSIM all public documents connected to his invention, including copies of patents granted in other States.
At the request of the OSIM or on his own initiative, the applicant or his successor in title may, until such time as a decision is made, modify the claims, the drawings or the description if such modifications do not extend beyond the limits of disclosure of the invention on the filing date of the patent application.
Article no 28
The OSIM through the Examination Board, shall, on the basis of the patent application examination report and within 18 months of the date on which examination of the application was requested, decide to grant a patent or to refuse a patent application or its subject-matter.
Excepted shall be patent applications withdrawn by the applicant or declared as deemed to be withdrawn.
The OSIM shall decide to refuse a patent application in whole or in part in the following cases:
a) the subject-matter of the application is not patentable within the meaning of Articles 7 to 11, 12 and 13;
b) the patent application does not meet the requirements laid down in Article no 6, the first paragraph of Article no 14, the fourth and the fifth paragraphs of Article no 15, the second and the fourth paragraphs of Article no 16, Articles 18 and 41;
c) the time-limit for opening the national phase for internationally registered applications has expired;
d) payment for fees for filing, for submitting the claims or drawings or missing parts of the description, for opening the national phase, for publication, examination or, as the case may be, of the designation fee, in the amounts and within time-limits prescribed by the law and the Implementing Regulations to this Law has not been effected;
e) the twelve-month time-limit from the date on which applications under the seventh paragraph were deemed to be withdrawn has elapsed;
f) refusal of the patent application in accordance with the c) under the second paragraph of Article no 65 has been requested;
g) the applicant, other than the inventor, has not proved, within the time-limit prescribed in the second paragraph of Article no 29, that he is entitled to the grant of the patent;
h) examination of the patent application in view of the grant of a patent has not been requested within the time-limits prescribed in Article no 25.
The mention of the decision to grant a patent or to refuse a patent application shall be published in the Official Bulletin of Industrial Property within sixty days, excepting the time-limit prescribed in the second paragraph of Article no 29. Simultaneously with the publication of the mention of the decision to grant a patent, the descriptions, claims and drawings of patented inventions shall be made available to the public, under the provisions of the Implementing Regulations to this Law.
The decision to grant a patent or to refuse a patent application shall become effective on the date of the publication of its mentioning in the Official Bulletin of Industrial Property under the provisions of the Implementing Regulations to this Law.
In the case of decisions to grant a patent for an invention classified as secret of State, after such secrecy has been lifted, the provisions in the fourth paragraph and in the fourth paragraph of Article no 23 shall apply.
The OSIM shall take note of the withdrawal of the patent application provided that the applicant expressly requests the withdrawal in writing.
Patent applications shall be declared as deemed to be withdrawn in the following circumstances:
a) the inventors were not declared within eighteen months from the date on which substantive examination was requested;
b) the applicant did not respond to the notifications of the OSIM subsequent to the establishment of the admissible content of the claims, under the provisions in the first paragraph of Article no 18 regarding the requirements that the form of the claims, description and drawing should correspond to said content;
c) the application lay at the basis of the priority claim in a subsequent application filed by the national route or for which the national phase has been opened in Romania;
d) the patent application is in the circumstance provided for in the second paragraph under b) of Article no 65;
e) international patent applications for which OSIM acts as receiving office that do not meet the requirements of the Patent Cooperation Treaty;
f) the applicant did not submit the claims and the drawings within the time limit prescribed in the seventh paragraph of Article no 15.
All decisions issued by the OSIM shall be substantiated, registered in the National Register of Patent Applications and shall be communicated within the time limits and under the conditions laid down in the Implementing Regulations to this Law. In the same register there will be also registered the mentions concerning withdrawn patent applications or the mentions concerning the declarations pursuant to which the patent applications are deemed to be withdrawn, which shall be also communicated.
In case of death of the interested party or dissolving of the legal person, the procedure shall e discontinued until the OSIM is notified of the successor in title, under the conditions laid down in the Implementing Regulations to this Law.
Where judicial proceedings have commenced regarding the right to the patent and the right to the grant of a patent, the patenting procedure shall be suspended until the court decision becomes final.
The interested party shall notify the OSIM of this decision.
Article no 29
The OSIM may revoke its decisions ?ex officio? for failure to comply with the conditions laid down in this Law and for any clerical error until such time as the said decisions are made public.
Where the OSIM, on the basis of solid proofs, finds that the applicant, other than the inventor, is not entitled to the grant of a patent, with a view to the revocation provided for in the first paragraph, it may proceed to postpone the notification of the decision made, not exceeding a six-month period since its date. Within that period, solid proofs concerning the right to the grant of the patent shall be communicated to the OSIM.
Article no 30
Patents shall be issued by the Director General of the OSIM in accordance with the grant decision. For European patents, the OSIM shall certify the validity of the patents in Romania, pursuant to the law.
The date of the issue of the patent shall be the date on which the mention of the issue is published in the Official Bulletin of Industrial Property.
Patents shall be recorded in the National Register of Patents.
Where the conditions laid down by the Law are met, the European patent shall be recorded in the National Register of Patents.
Article no 31
The term of protection of patents shall be 20 years as from the date of filing of the application.
For European patents, the term under the first paragraph shall run from the date on which the regular national filing of the patent application was effected, pursuant to the European Patent Convention.
For patented pharmaceutical or plant protection products, supplementary protection may be granted, under the conditions laid down by the law.
Article no 32
For an invention to which a patent application relates, that cannot be applied without prejudicing a patented invention to which an earlier application relates, the OSIM shall take a decision to grant a patent only after having notified all interested parties of the relations between the inventions.
Chapter IV - Rights and Obligations
Article no 33
The patent shall confer on its owner an exclusive right of exploitation throughout its term of protection.
It is prohibited to perform the following acts without the owner?s consent:
a) manufacturing, using, offering for sale, selling or importing for the purposes of using, offering for sale or selling, where the subject-matter of the patent is a product.
b) using the process and using, offering for sale, selling or importing for those purposes of the product directly obtained by the patented process, where the subject-matter of the patent is a process.
The extent of the protection conferred by a patent shall be determined by the content of the claims. At the same time, the description and drawings of the invention shall be used to interpret the claims.
To determine the extent of the protection conferred by a patent, due account shall be taken of any element equivalent to an element specified in the claims.
The extent of the protection conferred by the patent application shall be determined by the claims comprised by the application as published pursuant to Article no 23.
The patent as granted or as amended in part in revocation or cancellation proceedings shall determine retroactively the protection conferred by the patent application, pursuant to the provisions of Article no 2, in so far as such protection is not thereby extended.
The protection conferred by a patent relating to a biological material having specific characteristics shall be extended to any material derived by reproduction or multiplication from the material for which the patent was granted, in an identical form or differentiated and having the same characteristics.
The protection conferred by a patent relating to a process allowing the production of a biological material having specific characteristics shall extend to the biological material obtained directly by that process and to any other biological material derived from the biological material directly obtained by that process and to any other material obtained starting from the biological material directly obtained by reproduction or multiplication, in an identical form or differentiated and having the same characteristics.
The protection conferred by a patent to a product containing genetic information or consisting in genetic information shall be extended to any other material incorporating the product and wherein the genetic information is contained and exercises its function, except for the human body in the various stages of its formation or development.
The protection referred to in paragraphs 7 to 9 shall not extend to the biological material obtained by reproduction or multiplication from a biological material sold or offered for sale in the territory of Romania by the patent owner or with his consent, where the reproduction or multiplication necessarily results from the utilization for which the biological material was put on the market, provided that the obtained material has not been used subsequently for other reproductions or multiplications.
Article no 34
A patent application shall, from the date of its publication under Article no 23, provisionally confer upon the applicant such protection as is conferred by Article no 33, except for the cases where the patent application has been refused, withdrawn or declared as deemed to be withdrawn.
Article no 35
The following acts shall not constitute infringements of the rights under Articles 33 and 34:
a) exploitation of the invention in the construction and operation of land vehicles or aircraft and aboard vessels or in devices used in the operation thereof that belong to States party to international treaties and conventions concerning inventions to which Romania is also party, when the vehicles, craft or vessels enter the territory of Romania either temporarily or accidentally, provided that such exploitation is exclusively for the needs of the vehicles, craft or vessels;
b) performing any of the acts referred to in the second paragraph of Article no 33 by a person who has applied the subject-matter of the patent or that of the patent application, as published, or has taken real and effective steps towards producing or exploiting said subject-matter in good faith in the territory of Romania, independently of the owner of the patent and before the regular national filing concerning the invention has been effected or before the recognized priority date; in that case, the invention may continue to be exploited by that person to the same extent as on the date of the regular national filing or recognized priority, but the right of use may not be transferred otherwise than with the assets of that person or the part of the said assets assigned to the exploitation of the invention;
c) performing any of the acts referred to in the second paragraph of Article no 33 exclusively privately and for non-commercial purposes; production or, as the case may be, use of the invention exclusively privately and for non-commercial purposes;
d) marketing or offering for sale within the territory of Romania, of specimens of the product constituting the subject matter of the invention that have been previously sold by the patent owner or with his the express consent;
e) exploitation in good faith or taking real and effective steps towards exploiting the invention by third parties in the interval between the patent owner?s loss of rights and the reinstatement of the patent. In that case, the invention may continue to be exploited by that person to the same extent as on the date of publication of the mention of the re-establishment of the rights, but the right of use may not be transferred otherwise than with the assets of the person exploiting the invention or the part of the said assets assigned to the exploitation of the invention;
f) exploitation by third parties of the invention or part of the invention in respect of which protection has been renounced.
Any person who, in good faith, exploits the invention or has taken real and effective steps to exploit the invention, in so far as the rights conferred by a patent application or a European patent in its original translation are not thereby infringed upon, may continue to exploit the invention, after the corrected translation becomes effective, within his enterprise or for its necessities, without payment and not exceeding the extent existing on the date on which the original translation became effective.
Article no 36
The inventor shall have the right to the mention of his full name and status in the patent granted, in his employment record and in any other documents or publications concerning his invention.
Where the patent owner is not the same person as the inventor, a duplicate patent shall be issued to the latter.
Upon his express request, the inventor?s full name shall not be published; such request shall be subject to payment of the prescribed fee.
Article no 37
For inventions created and achieved pursuant to the first paragraph of Article no 5 with contrary clause and the second paragraph of Article no 5, respectively, the inventor shall enjoy economic rights determined by contract concluded with the applicant for or, as the case may be, owner of the patent.
The economic rights shall be determined according to the economic and/or social effects resulting from the exploitation of the patent or the economic contribution of the invention.
Article no 38
In the event of loss of his rights under the third paragraph of Article no 45, the patent owner may apply to the OSIM, stating justified grounds, for reinstatement of the patent within six months of the date of publication of the said loss. Within 60 days from the registration, the OSIM shall decide upon the request for reinstatement, subject to payment of the prescribed fee. Mention of the reinstatement of the patent shall be published by the Official Bulletin of Industrial Property within 30 days from the date on which the decision becomes final and irrevocable.
Article no 39
The patent owner may renounce the patent either wholly or in part by virtue of a written statement filed with the OSIM.
In the case of inventions provided for in the first paragraph under (a) and in the second paragraph of Article no 5, and inventions that have been assigned as provided in the first paragraph under (b) of Article no 5, the patent owner shall notify the inventor of his intention to renounce the patent; the patent owner shall transfer the patent rights to the inventor at the latter's request.
Where the patent is the subject of a license agreement, renunciation shall be possible only with the agreement of the licensee.
The invention or part of the invention in respect of which protection has been renounced may be freely exploited by third parties.
The inventions referred to in the second paragraph of Article no 42 may be renounced only with the agreement of the authorities that made them secret of State.
Renunciation shall be registered with the OSIM in the National Register of Patents and shall come into effect on the date of its publication in the Official Bulletin of Industrial Property.
Article no 40
A patent shall be cancelled either wholly or in part, at the request of interested parties, where it is established that the conditions of patentability were not met on the date of registration of the patent application. Requests for cancellation may be made throughout the term of validity of the patent, and shall be ruled upon by the Court of Bucharest. The decisions of the Court of Bucharest may be appealed against before the Court of Appeal of Bucharest within 30 days of notification.
The decisions of the Court of Appeal of Bucharest may be appealed against before the Supreme Court of Justice within 30 days of notification.
The final and irrevocable decision on cancellation shall be registered at the OSIM by the interested party.
Mention of the cancellation shall be published in the Official Bulletin of Industrial Property within 60 days from the registration of the decision at the OSIM.
Article no 41
In proceedings before the OSIM, the applicant, assignor or owner or any other interested person may be represented by a representative, on the basis of a power of attorney filed with OSIM, under the conditions and within the time limits prescribed by the Implementing Regulations to this Law.
For the persons mentioned above not having their domicile or registered office in the territory of Romania, representation by representative shall be compulsory, with the following exceptions, in which one may act in his own name:
a) filing a patent application to be accorded a filing date;
b) payment of a fee;
c) submitting a copy of a previous application;
d) issuance of a notification by OSIM concerning any procedure under letters a), b) and c).
Renewal fees may be paid by any person.
In case of revocation of the power of attorney, the representative?s signature does not have the effect of the signature of the applicant, owner or interested persons who designated the representative.
Article no 42
An invention for which a patent application has been filed at the OSIM shall not be disclosed without the consent of the applicant, until its publication, and shall have the character established by the special law until publication.
The content of patent applications for inventions created in the territory of Romania shall be secret of State where declared such by the competent authorities for the national defense and State security and the applicant shall be informed accordingly and granted material compensation by the authority that has made the invention secret. Such secrecy shall be lifted at the discretion of the same authorities.
The OSIM shall maintain the character attributed to the documents by the competent authorities.
Article no 43
Inventions made by Romanian natural persons on the territory of Romania may not be patented abroad until a patent application has been registered at the OSIM.
In the case of inventions under the second paragraph of Article no 42, the grant of foreign patents shall be subject to authorization by the authorities that made the inventions secret of State.
For the patenting abroad of the inventions under the first paragraph, the Romanian applicants for or owners of patents may avail themselves of financial support, pursuant to the law.
With regard to the inventions referred to in the first paragraph above, the Romanian natural persons who have created them or their successors in title shall inform the OSIM of their intention to apply for a patent abroad.
For the registration of international application with a view to patenting the inventions in other States, pursuant to the Patent Cooperation Treaty, OSIM shall act as a receiving Office.
Article no 44
In the case of inventions for which an employer is entitled to the grant of a patent, that employer shall be obliged to inform the inventor of the stage reached by the examination of the patent application at the OSIM, and on the status and any results of exploitation of the invention.
At the request of the patent owner, the inventor shall be obliged to afford technical assistance under contract for the exploitation of the invention.
Article no 45
The proceedings carried out by the OSIM regarding the patent applications and patents referred to in this Law and in its Implementing Regulations shall be subject to the payment of fees, in amounts and within time limits laid down by law.
Throughout the term of validity of the patent, the patent owner shall annually pay patent renewal fees.
Failure to pay such fees shall cause the patent owner's loss of his rights under the patent. The loss of the said rights by the owner shall be registered in the National Register of Patents and published in the Official Bulletin of Industrial Property. Renewal fees may also be paid in advance, under the conditions laid down by the Implementing Regulations to this Law, for a period not exceeding four years.
Fees payable by foreign natural or legal persons shall be paid in convertible currency into the account of the OSIM.
Article no 46
The applicant for or owner of a patent who, for legitimate grounds, was unable to observe a time limit in proceedings before the OSIM, shall have his rights reestablished provided that he submits a substantiated application within two months from the removal of the cause that prevented him from acting, but no later than one year since the expiry of the non-observed time limit.
The provisions of the first paragraph shall not apply where the non-compliance with the time limit occurred in the following cases:
a) claiming of priority in accordance with Articles 20 to 22;
b) filing of the translation of the description, claims or drawings, in accordance with the second paragraph of Article no 16;
c) requesting for examination for the grant of a patent, in accordance with Article no 25;
d) paying the filing fees and the fees for the search report, in accordance with the first paragraph of Article no 45;
e) filing of an application for revocation according to Article no 54;
f) expiry of the time limit for dividing a patent application, prescribed in the second paragraph of Article no 19;
g) expiry of the time limit for filing a new patent application, in accordance with the second paragraph under b) of Article no 65;
h) paying the patent renewal fees.
The provisions of the first paragraph shall neither apply in the cases provided for in the second paragraph under c), d) and f) and the seventh paragraph under d) and e) of Article no 28 and in Article no 53.
The application for the re-establishment of the rights shall be subject to the payment of a fee, in the amount prescribed by the law for filing a contestation, except for the case provided for in the seventh paragraph under b) of Article no 28, for which no fees are payable.
Chapter V - Transfer of Rights
Article no 47
The right in the patent, the right to the grant of a patent and the rights deriving from a patent shall be transferable, either wholly or in part.
Transfers may be effected by assignment, by the grant of exclusive or non-exclusive licenses or by legal or testamentary succession.
Transfers shall be binding on third parties only as from the date of publication in the Official Bulletin of Industrial Property of the mention of the transfer registered at the OSIM.
Article no 48
At the request of any interested party, the Court of Bucharest may grant a compulsory licence after four years have elapsed from the date of filing of a patent application or after three years have elapsed from the grant of the patent, whichever period expires later.
The provisions of the first paragraph shall apply only where the invention has not been exploited or has been insufficiently exploited on the territory of Romania, and the patent owner cannot justify his inaction, and where no agreement has been reached with the patent owner regarding the conditions and commercial methods for using the invention.
The Court of Bucharest shall authorize the compulsory licence provided that it considers, based on given circumstances, that, in spite of all efforts been made by the interested person, no agreement could be reached within a reasonable time.
Beneficiaries of the compulsory licence can also be the Government or third parties authorized by the Government.
Besides the reasons referred to in the second paragraph, a compulsory licence may be authorized by the Court of Bucharest:
a) in national emergency cases and mainly in the interest of the national defense or national security or where the public interests so require;
b) in other cases of extreme emergency;
c) in cases of public utilization for non-commercial purposes.
The grant of the compulsory license for one of the reasons referred to in the fifth paragraph shall not require the fulfilment of the conditions mentioned in the second paragraph. Nevertheless the beneficiary of the licence shall inform the applicant for or the owner of the patent about the authorization given by the Court, within the shortest delay.
In situations of public utilization for non-commercial purposes, the Government or third parties authorized by the Government, when they know or have demonstrable reasons to know if a valid patent is or will be used by the Government or by third parties, shall let the patent owner know about the utilization of the patent, within a reasonable time.
In the cases where a patent cannot be exploited without infringing upon the rights conferred by another patent, granted for an application having a prior regular national filing date, a compulsory licence for the exploitation of the second patent may be authorized only if the following additional conditions are fulfilled cumulatively:
a) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;
b) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent;
c) the use authorized in respect of the first patent shall be non-assignable, except with the assignment of the second patent.
Article no 49
Compulsory licences shall be non-exclusive, and shall be granted by the Court of Bucharest on certain conditions regarding extent and duration thereof and the royalty amounts the right holder is entitled to, established according to the commercial value of the granted licences.
Compulsory licences shall be authorized mainly for supplying the market.
The extent and duration of the compulsory licences shall be limited to the purposes for which they have been authorized. In the case of the inventions in the semiconductor technology field, the licence shall be granted only for public non-commercial purposes or to remedy a practice declared anti-competitive, as a result of a judiciary or administrative procedure.
When a breeder cannot exploit a patent for a new plant variety without causing damages to a prior patent, the breeder may request a compulsory licence for the invention protected by that patent.
When the owner of a patent relating to a biotechnological invention cannot exploit the invention without causing damages to a prior patent for a new plant variety, the owner may request a compulsory licence for the exploitation of the new plant variety protected by patent.
Where a compulsory licence is authorized for remedying an anti-competitive practice, the provisions of the third to the fifth paragraphs of Article no 48 shall not be applicable.
Article no 50
The compulsory licence shall not be transferred otherwise than with the part of the enterprise or the stock of goods benefitting of such use.
The provisions of the first paragraph shall not apply where a compulsory licence has been granted pursuant to Article no 48.
Article no 51
At the justified request presented by the interested person, the Court of Bucharest may withdraw the compulsory licence, when the circumstances leading to the grant of the licence ceased to exist, provided that the legitimate interests of the licensee should be protected adequately. The licence shall not be withdrawn if the circumstances which determined the grant of such licence are likely to occur again.
The decisions of the Court of Bucharest concerning the authorization of the use of a compulsory license, and those concerning the remuneration prescribed as against the use of the licence, may be appealed against at the Court of Appeal of Bucharest, within 15 days from communication of such decisions.
Article no 52
The final and irrevocable Court decisions on the grant or, as the case may be, the withdrawal of the compulsory licence shall be communicated by the interested person to OSIM and the latter shall register such decisions in the National Register of Filed Patent Applications or in the National Register of Patents and shall publish the mention of such decisions in the Official Bulletin of Industrial Property within a month from communication.
Chapter VI - Defense of Rights in Inventions
Article no 53
Decisions of the OSIM may be contested at the said Office by any interested party within three months of notification thereof.
The contestation shall be settled within three months of registration thereof at the OSIM by a Reexamination Board within the Appeal Department of the OSIM, in the first instance.
Contestations having as an object only the remedying of clerical errors or omissions shall not be subject to the payment of fees.
The provisions relating to the jurisdictional attributions of the Reexamination Boards within the Appeal Department shall be completed with the provisions of the Code of Civil Procedure and with any other legal provisions as well, if not otherwise provided for by this Law.
Article no 54
Any interested party shall be entitled to apply in writing, on valid grounds, to the OSIM for the revocation of the decision to grant a patent within six months of the publication thereof, if the decision was made without meeting the provisions set forth in Articles 7 to 11 and of Articles 12, 13 and 18.
The contestation or, as the case may be, the application for revocation shall be settled within six months of registration thereof at the OSIM by a Reexamination Board within the Appeal Department of the OSIM.
Article no 55
Failure to meet one or more of the formal requirements regarding an application shall only constitute grounds for revocation of the decision to grant a patent or for cancellation of the patent, either wholly or in part, where such failure resulted from fraudulent intentions.
A patent shall not be revoked or cancelled, either wholly or in part, without giving the owner the possibility to present observations concerning the revocation or cancellation and to perform, in a reasonable period of time, the modifications or rectifications allowed by the law and by the Implementing Regulations to this law.
Article no 56
The substantiated decision of the Board of Reexamination shall be notified to the parties within 15 days of pronouncement, and may be appealed against before the Court of Bucharest within 30 days of such notification.
Within 15 days from communication, the decisions of the Court of Bucharest may be appealed against at the Court of Appeal of Bucharest.
Decisions to grant a patent made by the Reexamination Board and decisions made by judicial authorities, communicated to the OSIM by the interested party, shall be entered into the Official Bulletin of Industrial Property within 60 days from the date on which they are final and irrevocable.
The OSIM shall enter the modifications pursuant to final and irrevocable Court decisions into the national registers and shall publish such decisions in the Official Bulletin of Industrial Property within 60 days from the date of filing thereof at the OSIM by the interested party.
Article no 57
The unlawful assumption, in any way, of the status of inventor shall constitute an offense and shall be punished with imprisonment for six months to two years or with a fine of 50,000,000 to 100,000,000 Lei.
Article no 58
The unauthorized manufacture, use or putting into circulation of the subject matter of a patent, or any other infringement of the rights conferred under the first paragraph of Article no 33, provided that such infringement occurred after the date of publication of the patent application, shall constitute the offense of infringement under this Law and shall be punished with imprisonment for three months to two years or with a fine of 100,000,000 to 300,000,000 Lei.
Criminal proceedings shall be initiated by the preliminary filing of a complaint by the aggrieved party.
The patent owner shall be entitled, for prejudice caused to him, to damages as provided for in civil law, and he may request the competent law court to order the infringing products to be confiscated or destroyed, as the case may be. These provisions shall also apply to the materials and equipment that directly served to the perpetration of the counterfeiting offense.
Any infringement by third parties of rights under Article no 34 shall make the infringers liable for damages under civil law, and the entitlement to the payment of damages shall be enforceable after the grant of the patent.
Article no 59
Where, before the date of publication of the patent application, the acts referred to in the first paragraph of Article no 58 continue to be done after summoning, the law court may, upon request, order such acts be discontinued until the decision of the OSIM becomes final and irrevocable. Such measure may be ordered subject to payment by the applicant of a security fixed by the law court.
Article no 60
In the case of infringement on the right of a process patent owner, provided for in the second paragraph under b) of Article no 33, the burden of proof in establishing the fact that the process used to obtain an identical product is different from the patented process shall be incumbent upon to the alleged infringer of said right.
In applying the provisions of paragraph 1, any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process in at least one of the following circumstances:
a) if the product obtained by the patented process is new;
b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.
Upon presentation of proof to the contrary by the patent owner, the legitimate interests related to the manufacturing and business secrets of the alleged infringer shall be taken into account.
Article no 61
Disclosure, by the staff of the OSIM and also by persons doing work in connection with inventions, of the information contained in patent applications prior to the publication thereof shall constitute an offense and shall be punished with imprisonment for three months to two years or with a fine of 15,000,000 to 50,000,000 Lei.
The OSIM shall be answerable to the inventor for prejudice caused as a result of the offense referred to in the first paragraph above.
Article no 62
Any litigation concerning the status of inventor or patent owner, concerning other rights arising from the patent, including the inventor's economic rights under assignment or licensing contracts, or concerning failure to comply with the provisions of the sixth paragraph of Article no 5 and Articles 37 and 44 shall be within the jurisdiction of the law courts.
The interested person shall communicate the court decision to OSIM, within 30 days from the date on which the decision became final and irrevocable, in order to be entered in the National Register of Filed Patent Applications or in the National Register of Patents and published in the Official Bulletin of Industrial Property. In the absence of the publication in the Official Bulletin of Industrial Property, the decision shall not be opposable to third parties.
Article no 63
The patent owner may request the law court:
a) to order withholding measures when there exists the risk of infringing on the rights arising from a patent and if such infringement risks to cause irreparable prejudice or if there exists the risk of destroying the probative elements;
b) to order, after the grant of the customs clearance, certain measures for stopping the acts of infringement on the rights arising from a patent, performed by a third party on the occasion of putting certain imported goods into the commercial circuit, causing thus damages to such rights.
The law court may decide that the infringer of the rights arising from the patent should inform the patent owner of the identity of third parties who took part in producing and distributing the goods concerned, and of the distribution circuits as well.
The insuring measures may be ordered subject to payment by the plaintiff of a security established by the law court.
To order the withholding measures the provisions of the civil law shall be applicable.
The law court may demand the plaintiff to supply any probative elements available to him in order to prove himself to be the owner of the infringed patent or of a patent the infringement of which is unavoidable.
Article no 64
Customs authorities may order, either ex officio or upon the patent owner?s request, that customs clearance operations be suspended for the import or export of goods under the first paragraph of Article no 58, or to place such goods under a suspensive customs status.
The Customs competence regarding the enforcement of patent rights at the borders shall belong to the General Directorate of Customs, according to the law.
Article no 65
Where a court decision has established that a person other than the one named in the patent is entitled to have the patent granted to him, the OSIM shall issue a patent to the entitled person and publish the change of ownership.
If, before the grant of the patent by OSIM, a court decision had established that the right to the patent belongs to a person other than the applicant, within three months from the date on which the court decision became final and irrevocable, and under the conditions laid down by the Implementing Regulations to this law, the person entitled to this right may:
a) continue, instead of the applicant, the procedure concerning the filed patent application as if it were his own application;
b) file a new patent application for the same invention. For the elements which do not extend the content of the original application filed by observing the provisions of Article no 19, the original application shall be declared by OSIM as deemed to be withdrawn starting on the date of filing of the new application;
c) request the application to be refused.
Article no 66
At the request of the law court, OSIM shall submit the acts, documents and information necessary for judging the cause entrusted to the law court, these documents being finally retrieved. Summoning to the court shall be made only for this purpose.
Chapter VII - Responsibilities of the State Office for Inventions and Trademarks
Article no 67
The OSIM is a specialized body of the central public administration, under the subordination of the Government, with sole authority on the territory of Romania in the field of industrial property under the law and the provisions of international conventions and treaties to which the Romanian State is party.
Article no 68
In the field of inventions, the State Office for Inventions and Trademarks shall have the following responsibilities:
a) coordinates industrial property policy in Romania;
b) registers, publishes and examines patent applications, with a view to granting and issuing patents for invention;
c) maintains the National Register of Filed Patent Applications or in the National Register of Patents in which all particulars of patent applications and patents are recorded;
d) acts as a receiving Office for patent applications registered internationally by Romanian applicants, in accordance with the provisions of the Patent Cooperation Treaty;
e) administers, maintains and develops, by international exchange, the national collection of descriptions of inventions, and creates a computer data base in the field of inventions, on any kind of informational support;
f) provides on request technical information services on the basis of descriptions of Romanian and foreign inventions and official industrial property publications;
g) attests and authorizes industrial property attorneys, keeps records thereof in the National Register it maintains and periodically publishes data from said Register;
h) conducts relations with equivalent governmental and inter-governmental organizations and with specialized international organizations to which the Romanian State is party;
i) organizes training and specializing courses for specialists in the field;
j) periodically compiles and publishes, in the Official Bulletin of Industrial Property of Romania, information relating to patent applications and patents granted.
Chapter VIII - Transitional and Final Provisions
Article no 69
Patent applications filed with the OSIM under Law No. 62/1974 in respect of which no decision has been taken on either grant or refusal shall be ruled upon according to the provisions of the present Law.
Article no 70
Patents and patents for improvement as well, granted prior to the entry into force of this Law and valid on the territory of Romania shall have the term of protection prescribed in Article no 31.
Throughout the term of validity of the patents for improvement exploitation of the invention shall be made in accordance with the provisions of the eighth paragraph of Article no 8.
Economic rights accruing to inventors for patented inventions that have been exploited which rights have been partly settled or not settled prior to the entry into force of this Law, shall be negotiated between the inventor and the undertaking that has exploited the said invention. In such cases, the negotiation shall begin at the highest amount of compensation that the inventor could claim under the law applicable on the date of registration of the patent application. In the absence of agreement between the parties, the remuneration shall be determined according to the provisions of Article no 62.
The right to the patent shall revert to the inventor by operation of the law where, on the date of entry into force of this Law, the undertaking that has become the owner by legal assignment under Article no 14 of Law No. 62/1974 has not exploited the invention or has not taken the necessary steps for its exploitation.
Article no 71
Patents in force are intangible assets and are registered in the patent owner?s patrimony, where the owner is a legal person.
Article no 72
The economic rights of the maker of a technical achievement that is new and useful to an undertaking shall be determined by contract concluded between the said maker and the undertaking.
The undertaking that exploits the technical achievement shall attest the status of the person who made it.
Failure to comply with the provisions of the first and second paragraphs shall place the undertaking under the obligation to pay damages under civil law to the maker of the technical achievement. Damages shall be determined according to the economic performance achieved by the undertaking.
Article no 73
The profit or the income made through actual exploitation of an invention patented in Romania by the owner or by his licensees, as the case may be, shall be exempt from tax during the first five years from the first exploitation, counted from the date on which exploitation begins and included in the patent term of validity.
Legal or natural persons exploiting the invention, the owner of the exploited patent respectively, shall benefit by the provisions in the first paragraph.
The income made by the patent owner through assignment thereof shall be exempt from tax.
Article no 74
This Law shall enter into force three months after the date of its publication in the Official Gazette of Romania, Part I.
On the same date, Law No. 62/1974 on Inventions and Innovations, Decree No. 93/1976 on the Standards for the Calculation of Remuneration Payable to the Makers of Inventions Exploited in the National Economy, Decree No. 363/1976 on the Fees Payable for Patent Applications and Granted Patents, and any other provisions contrary to this Law, shall be repealed.
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