Denmark

The Mi nistryfor Business and Industry Consolidate A CT Nu. 781 of 30 August 2001

The Consolidate Patents Act

Publication of th e Patents Ac t, cf. Co nso lida ted Ac t No . 926 of 22 September 20(JO, inc lud ing th e

ame ndme nts wh ich foll ow from Sec tion I in Ac t No . 125R 01'20 December 2000 "

Part I

General provisions

Section I

(1) Any per son wh o has made an invention which is susceptible of industri al app lication, or his successor in title, shall, in accordance with this Act, hav e the right on app lication to be granted a patent for the invention and thereby obtain an exclusive right to exploit the inventi on commerciall y. Inventions may be patented with- in all areas of technology.

(2) Th e following subject-matter or activi ties in particular shall as such not be regarded as in- ventions : (i) discover ies, scientific theories and mathe-

matical meth ods, (ii) art istic creations, (iii) plans, rule s or methods for intellectual activ-

ity, for games or for busine ss activity or computer programs,

(iv) presentation of information. (3) Methods for surg ical or therapeuti c treat-

ment or for diagnosis, practi sed on human beings or animals, sha ll not be regarded as inve ntions, either. Th is pro vision sha ll not prevent the grant of patents for products, including substances and compounds, for use in any of such method s.

(4) Patent s shall not be granted in respect of plant and anim al varieties . Patents may, howev- er, be granted for inventi ons, the subject matter of which is plant s or anima ls if the techni cal fea-

The Ministr y of Trade and Industry. Dan ish Patent and Trademark Of1ice . j .No , 199R 002 35

s.ibility of the in v~nti on is not co nfined to a pa r- ticul ar plant or an imal variety. In th is act , a plant variety means a plant variety as defin ed in Arti- c le 5 of Co uncil Regul ation (EC) No. 2 100/94 on Co mmunity plant variety rights.

(5) Patents sha ll not be gra nted in res pect of essentially biological processes for the produ c- ti?n of plan ts or animals. In thi s Act. essentia lly biolog ical processes mean processes, wh ich con- sist entire ly of natural phenom ena such as cross- ing or se lection. Patent s may, how ever , be gra nt- ed lor microb iological processes or other techn i- ca l processes or a product produced by means of such processes. In thi s Act. a microbiologica l pro cess means any process, which exploits a microbi ological materia l. is perform ed on a microbi ological mater ial or results in a micro- biologica l material.

(6) Inventi ons may be paten tab le, eve n if they co nce rn a produ ct consisting of or containing bi- o log ica l rnaterial or a process by means of which biological mat erial is produced, processed or used . Biolog ical mat erial , which is isolated from its natu ral env ironment or produ ced by means of a techni cal process may be the subject of an in- vention eve n if it previously occ urred in nature . In thi s Ac t, biolo gical material means material conta ining genetic info rma tion and capable of repro duc ing itse lf or being reproduced in a bio- logical system.

Sec tion la

(I) The human body, at the various stages or

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its forma tion and development, and the simple discovery of one of its elements, including a se- quence or part ial sequence of a gene, cannot con- stitute patentab le inventions. .

(2) No twithstanding subsect ion I hereof, an element isolated from the human body or other- wise produ ced by means of a techn ical process, including a sequence or partial sequence of a gene, may consti tute a patentable invention, even if the struc ture of that element is identical to that of a natural element.

Section Ib

(I) Patents shall not be granted in respect of in- ventions the commercia l exploitation of which would be contrary to ordre publ ic or morality.

(2) An exploitation shall not be deemed to be contrary to ordre publ ic or morality merely be- cause the exploitation is prohibited by law or ad- ministrat ive regulation.

(3) Pursuant to (I) patents may, however, not be granted for, among other things (i) processes for cloning human beings, (i i) processes for modi fying the germ line genet-

ic identity of human beings, (iii) uses of human embryos for industrial or

commerc ial purposes, and (iv) processes for modi fying the genetic identit y ofanima ls which are likely to cause them suffer- ing witho ut any substantial medical benefit to man or animal, and also animals resulting from such processes.

Sec tion 2

(I) Patents sha ll be gran ted only for inven- tions, which are new in relat ion to the state of the art prior to the date of filing of the patent appli- cation and which, moreover, differ essentially therefrom.

(2) The state of the art shall be held to com- prise everything made avai lable to the pub lic by means of a written desc ription, lecture, exploita- tion or in any other way. The contents of patent applications filed in this country before the said date of filing shall also be regarded as comprised in the state of the art, if such app licatio ns are made avai lable to the public in acco rdance with the rules in sectio n 22 of this Act. The same shall apply to the contents of applications for registra- tion of utility models filed in this country before the said date of filing, if such applicatio ns are

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made available to the publ ic in accordance with the rules relating to utili ty models. The require- ments in subsect ion I hereof to the effec t that the invention sha ll differ essentially from the state of the art shall, however, not apply in relation to the contents of such appli cations.

(3) Provisions to the effec t that for the purpos- es of subsection 2 hereof applica tions provided for in Part 3 of this Act shall in certain cases have the same effec t as patent applicat ions filed in this country are laid down in sectio ns 29 and 38 of thi s Act.

(4) The requirement under subsection 2 hereof that inventions be new shall not prevent the grant of patents for known substances or compounds for use in the meth ods referred to in section 2 (3) of this Act, provided that the use of such sub- stance or compound is not known for any of those methods.

(5) Patents may, however, be gra nted for in- ventions irres pective of the fact that they have been made avai lable to the publi c with the last 6 months prior to the filing of the application, if this is a conseq uence of (i) evident abuse in relation to the applicant or

his legal predecessor, or (ii) the fact that the applicant or his legal prede-

cessor has displayed the invent ion at an offi- cia l, or officially recognized, internation al exhibition falling within the terms of the Convention on International Exhibitions, signed at Par is on 22 November 1928.

Section 3

(I) The excl usive right conferred by a patent sha ll imp ly that no one, except the proprieto r of the patent, may without permission exp loit the inventi on (i) by making, offe ring, putting on the market

or using a produ ct which is the subject-mat- ter of the patent , or by importi ng or possess- ing the product for these purposes, or

(ii) by using a process which is the subject-mat- ter of the patent or by offering the process for use in this country, if the person offering the process knows, or it is obvious in the cir- cumstances that the use of the process is pro- hibited without the consent of the proprietor of the patent , or

(iii) by offe ring, puttin g on the market or using a product obtai ned by a process which is the

subject-matter of the patent or by importing or possessing the product for these purpo ses.

(2) The exclusive right shall imply that no one, except the proprietor of the patent , may without permission exploit the invention by supplying or offering to supply any person who is not entitled to exploit the invention with means for working it in this country, if these means relate to an es- sential element of the invention and the person supplying or offering to supply the means knows, or it is obvious in the circumstances, that these means are suitable and intended for such use. This provi sion shall not apply when the means are staple commodities, except when the person supplying or offering to supply the means induces the person supplied to commit acts as re- ferred to in subsection I hereof. For the purpose of the Ist and 2nd clause hereof, persons perform- ing acts as referred to in subsection I hereof. For the purposes of the Ist and 2nd clause hereof, per- sons performing acts as referred to in subsection 3 (i), (iii) or (iv) hereof shall not be considered entitled to exploit the invent ion.

(3) The exclusive right shall not extend to: (i) acts done for non-commercial purpo ses, (ii) acts concerning products put on the market

in this country or in another country within the European Economic Area (EEA) by the proprietor of the patent or with his con sent ,

(iii) acts done for experimental purposes relating to the subject-matter of the patented inven- tion, or

(iv) preparation in a pharmacy of a medicinal product accord ing to a prescription in indi- vidual cases or acts concerning the medici- nal product so prepared.

Section 3a

(I) The protection conferred by a patent on a biological material possessing specific chara c- teristics as a result of the invention shall extend to any biological material derived from that bio- logical material through propagation or multipli- cation in an identical or divergent form and pos- sess ing those same characteristics.

(2) The protection conferred by a patent on a process that enables a biological material to be produced possessing specific chara cteristics as a result of the invention shall extend to biological material directly obtained through that proces s and to any biological material through propaga-

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tion or multiplication in an identical or divergent form and possessing those same characteristics.

(3) The protection conferred by a patent on a product containing or consisting of genetic in- formation shall extend to all material in which the product is incorporated and in which the ge- netic information is contained and performs its function , cf., however, Section Ia.

(4) The protection reffered to in (I), (2) and (3) shall not extend to biological material obtained from the propagation or multiplication ofbiolog- ical material placed on the market in the territory of a Member State by the propri etor of the patent or with his consent, where the multiplication or propagation necessarily result s from the applica- tion for which the biological material was mar- keted, provided that the material obtained is not subsequently used for other multiplication or propagation.

Section 3b

(1) Notwithstanding the provisions in Section 3a, / 1-3), the sale or other form of commerciali- sation of plant propagating material to a farmer by the proprietor ofthe patent or with his consent for agricultural use implies authorisation for the farmer to use the product of his harvest for prop- agation or multiplication by him on his own farm, the extent and conditions ofthis derogation corresponding to those under Article 14 of Reg- ulation (EC) No. 2100/94 on Community plant variety rights.

(2) Notwithstanding the provision s in Section 3a, /1-3), the sale or any other form of commer- cialisation of breeding stock or other animal re- productive material to a farmer by the proprietor of the patent or with his consent implies author- isation for the farmer to use the animal or other animal reproductive material for the purpo se of pursuing his agricultural activity but not to sell it within the framework or for the purpo se of a commercial reproduction activity. The Minister for Business and Industry shall lay down provi- sions concerning the extent and conditions of the farmer's exploitation of such patents for the pur- poses of pursuing his agricultural acti vity.

Section 4

(1) Any person who, at the time when the pat- ent application was filed, was exploiting the in- vention commercially in this country may, not-

withstanding the grant of a patent , continue such exploita tion retain ing its general charac ter, pro- vided that the exploitation did not constitute an evident abuse in relati on to the applicant or his legal predecessor. Such a right of ex ploitation shall also, under similar conditions, be enjoyed by any person who had made substantial prepa- rations for commercia l exploitation of the inven- tion in this country.

(2) Th e right provided for in subsec tion I here- of shall only be transferred to others together with the business in which it has arisen or in which the exploitation was intended .

Sec tion 5

(I) Not withstanding a patent having been granted for an invention, persons other than the propri etor of the patent may exploit the inven- tion by the use of a foreig n vehicle, vessel or air- craft when it temp oraril y or acc identally enters this co untry.

(2) The Minister for Business and Industry may direct that, notwithstanding the gra nt of a patent , spare parts and accessories for aircraft may be imported into and used in this country for the rep air of aircraft belon ging to a foreign state which grants similar right s in respect of Danish aircraft.

Sec tion 6

(1) Application for a patent of an invention whic h no earlier than 12 month s prior to the date of application has been stated in an application relating to patent or utilit y model registration in this co untry or patent , inventor's certificate or utility model protection in another country which has joined the Paris Convention of 20th

March 1883 co ncerning the protection of indus- trial own ership shall in relation to sec tions 2( I) , 2(2) and 2(4) together with sec tion 4 of this Or- der on request be seen as being filed at the same time as the earlier application. The same right of prior ity shall apply eve n if the appli cation for protect ion does not orig inate from a country which has joined the convention when an ident i- ca l priority from a Danish patent application or util ity model application pursuant to bilateral or multilateral agree ment is allowe d in the country in which the earlier application was filed and this is on conditions and with effects which substan- tially co mply with the convention.

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(2) The Minister for Business and industry shall lay down the particulars of the right to claim such priority.

Part 2

Patent applications and examination and other processing thereofetc,

Section 7

(1) The Patent Authority of this country shall be the Patent and Trade Mark Office, headed by a Director General , and the Patent Board of Ap- peal (Board of Appeal for Industrial Property). For the purposes of this Act , the "Patent Author- ity" mean s the Patent Authority of this country, unless otherwise stated.

(2) The Patent Board of Appeal shall be estab- lished by the Minister for Business and Industry for the examination of appeals from decision of the Patent and Trade Mark Office, cf. sections 25 and 67 of this Act , and appeals from decisions pursuant to the Danish Designs Act, the Dani sh Trade Marks Act , etc. The Patent Board of Ap- peal shall consist of not more than 18 members who shall be appointed for a term of5 years. 2 of the memb ers, one of whom shall be the chair- man , shall possess the general qualifications for appointment to the office of High Court judge whereas the other members together shall pos- sess the best possible expert knowledge of pat- ents, designs, trade marks and matters placed un- der the authority of the Patent Board of Appeal by other legislation. They shall be graduates from the Technical University of Denmark (Danmarks Tekniske Hejskole), another institu- tion of higher education or have acquired the necessary expert knowledge in another way .

(3) Havin g regard to the circumstances of each particular case, the chairman shall decide which and how many of the members of the Board ar to parti cipate in the examination of the case.

(4) The Mini ster for Busine ss and Industry shall lay down further rules for the activities of the Patent Board of Appeal including rules relat- ing to proceedings and rules to the effect that the appellant shall pay a fee for the examination of an appeal.

Section 8

(I) An appli cation for a patent shall be filed

with the Patent Authority or, in the case s referred to in Part 3 of this Act, with the patent authority of a foreign state or with an international organ- isation.

(2) The application sha ll contain a description of the invention, including drawin gs where nec- essary, and a precise statement of the matter for which protection by the patent is sought (one or more claims). The fact that the invention relat es to a chemical compound shall not imply that spe- cific use must be indicated in the claim. The de- scription shall be sufficiently clear to enable a person skilled in the art to carry out the inven - tion . An invention which relates to or involves the use of biological material sha ll, in the cases specified in section 8 a of this Act, only be re- garded as disclosed in a sufficient clear manner, if also the requirements of section 8 a are ful- filled.

(3) The application sha ll also contain an ab- stract of the descript ion and claims. The abstrac t shall merely serve for use as techni cal informa- tion and may not be taken into acco unt for any other purp ose.

(4) The name of the inventor shall be indicated in the application . If the applicant is not the in- ventor, he shall prove his right to the invention.

(5) The applicant shall pay the prescr ibed ap- plication fee. For the patent application the pre- scribed renewal fee in respect of each fee year beginning before the application is finally decid- ed upon shall also be paid. The fee year shall comprise I year and shall the first time be reck- oned from the date of filing of the appli cation and there after from the co rresponding day of the calendar year.

Sec tion 8 a

(1) If, in order to carry out the inventi on , this involves the use of biological material whi ch is neither available to the publ ic nor describable in the documents of the applica tion so as to enable a person skilled in the art to carry out the inven- tion, a sample of the biolo gical mater ial shall be deposited not later than on the date of filing of the application. The sample shall thereafter al- ways be deposited in such manner that any per- son entitled under this Act to a sample of the bi- ological material may have the sample furni shed in Denm ark . The Minister for Business and In- dustry shall lay down rule s as to where deposits may be made.

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(2) If a deposited sample ceases to be viab le, or if for any other reason a sample canno t be fur- nished, the sample may be replaced by a new sample of the biological mater ial within the pre- scribed period and otherw ise in accordance with rules laid down by the Min ister for Busine ss and Indu stry. If so, the new deposit shall be deemed to have been made already on the date of the pre- vious deposit.

Sec tion 9

If the applicant so requests and pays the pre- scr ibed fee , the Patent Authority shall, in accord- ance with rules laid down by the Minister for Business and Industry, cause the app lication to be sea rched by an International Searching Au- thority under the provision s o f Article 15 (5) of the Patent Co-o peration Treaty, done at Was h- ington on 19 June 1970.

Sec tion 10

In the same applica tion a patent may not be ap- plied for in respect of two or more mutu ally in- depend ent inventions.

Sec tion 11

If a patent is applied for in respect of an inven- tion which is disclosed by the applicant in an ear- lier patent application in which no final decision has been given, the later application shall, at the request of the applica nt and on the condition s laid down by the Mini ster of Business and Indus- try, be deemed to have been filed at the time when the docum ent s disclosing the inventi on were received by the Patent Authorit y.

Sec tion 122)

The Patent and Trade Mark O ffice may invite the applicant to appoi nt an agen t residing in The European Economic Area (EEA) to represe nt him in all matters re lating to the application. The name and address of the age nt sha ll be entered in the Register of Patent s.

Sec tion 13

An application for a patent may no t be amend- ed in such a way that protection is cla imed for subjec t-matter whic h was not disclosed in the applicat ion at the time when it was filed .

Section 14

(Repealed)

Section 15

(1) If the applicant has not complied with the requirements of the application, or if the Patent Authority has other objections to the acceptance of the application, the applicant shall be notified accordingly and be invited to file his observa- tions or to correct the application within a time limit to be specified. The Patent Authority may, however, make such amendments in the abstract as it finds necessary without consulting the ap- plicant.

(2) If the applicant fails to file the required ob- servations or to take steps to correct the applica- tion within expiry of the time limit, the applica- tion shall be shelved. The notification referred to in subsection I hereof shall contain information to that effect.

(3) The examination of the application shall, however, be resumed if the applicant submits his observations or takes steps to correct the applica- tion within 4 months after expiry of the specified time limit and pays the prescribed resumption fee.

(4) Ifany renewal fee is not paid according to sections 8, 41 and 42 of this Act, the application shall be shelved without previous notification. In the case of an application shelved for that reason the proceedings for grant may not be resumed.

Section 16

If, after having received the applicant's reply , the Patent Authority still has objections to the ac- ceptance of the application, and the applicant has had an opportunity to comment on the objec- tions, the application shall be refused, unless the Patent Authority considers it necessary once more to invite the applicant under section 15 (1) of this Act.

Section 17

(1) Ifany person claims before the Patent Au- thority that he, and not the applicant, is entitled to the invention, the Patent Authority may, if it finds the question doubtful, invite him to bring it before the courts within a time limit to be speci- fied. If the invitation is not complied with, the Patent Authority may disregard the claim when

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deciding on the patent application. Information to that effect shall be given in the invitation.

(2) If legal proceedings have been instituted concerning the right to an invention for which a patent has been applied for, the proceedings for grant may be suspended, until a final decision has been given in the legal proceedings.

Section 18

(1) Ifany person proves to the Patent Authori- ty that he, and not the applicant, is entitled to the invention, the Patent Authority shall transfer the application to the said person, if he so requests. The transferee shall pay a new application fee.

(2) If a request has been made for the transfer of a patent app lication, the application shall not be shelved, refused or accepted until a final deci- sion has been made on the request.

Section 19

(1) If the application complies with the re- quirements, and no objections have been found to the grant of a patent, and it has been estab- lished that the applicant approves the text on the basis of which patent may be granted, the Patent Authority shall notify the app licant to the effect that patent may be granted against payment of the prescribed fee for publication of the patent specifications.

(2) After the Patent Authority has submitted notification as mentioned in subsection I the pat- ent claim s shall not be amended in such a man- ner that the scope of the patent protection is ex- tended.

(3) The fee for publication of the patent speci- fications shall be paid within 2 months after the Patent Authority has forwarded a notification under subsection I hereof. Failure to do so shall cause the application to be shelved. However, proceedings will be resumed, if the applicant pays the patent grant fee and the prescribed re- sumption fee within 4 months after expiry of the time limit.

Section 20

(1) When the requirements in section 19 of this Act have been complied with, the Patent Author- ity shall grant the patent and issue letters patent. The grant of patent shall be advertised at the same time .

(2) Patent specifications including description,

claims and abstract shall be obtainable from the Patent Authority at the same time as the grant of patent is advertised. The patent spec i fi cat i~ns shall state the proprietor of the patent and the In- ventor.

Section 21

(1) Any person shall be entitled to file an op- position with the patent Authority against ay at- ent, which has been granted. The oppositron shall state the grounds on which the opposition is filed and shall be submitted to the Patent Author- ity within 9 months from advertisement of the grant of patent. The opposition shall be accom- panied by the prescribed fee.

(2) An opposition shall only be filed on the grounds that the patent has been granted irre- spective of the fact that (i) the requirements of Sections I and 2 of this

Act are not complied with, (ii) it relates to an invention which has not been

described in a suffic iently clear manner as to enable a person skilled in the art to carry out the invention on the basis of the description , or

(iii) the subject-matter extends beyond the con- tents of the application filed.

(3) The Patent Authority shall advertise the fil- ing of an opposition .

Section 22

(1) As from the date on which patent is grant- ed, the files of the application shall be available to the public.

(2) When 18 months have elapsed from the date of filing or, ifpriority has been claimed un- der section 6 of this Act, from the date on which priority is claimed , the files shall be available to, the public, even if patent has not been granted. It a decision has been made to shelve or to refuse the application, the files shall, however, not be available unless the applicant requests resump- tion of the proceedings, appeals against the re- fusal or requests re-establishment of rights under sections 72 or 73 of this Act.

(3) At the request of the applicant, the ti les shall be made available earlier than prescribed in subsections I and 2 hereof.

(4) When the files are made available under subsection 2 or 3 hereof, a notice to that effect shall be published.

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(5) II' a document contains business secrets which do not relate to an invent ion for which patent is applied or has been granted, the Patent Authority may, on request, when circumstances make it desirable, decide that the document shall not be available or only available in part. If such a request has been filed, the docum ent shall not be made available until a decision has been made or during the period within which the decision may be appealed against. An appeal shall have suspensive effect.

(6) If a sample of biological material has been deposited under section 8 a of this Act, any per- son shall have the right to obtain a sample when the files become avai lable under subsections I, 2 or 3 hereof. After the patent has been granted, and notwithstanding revocation or cancellation of the patent, furnishing may be made to anyone requesting it. This does not imply, however, that any sample shall be furnished to any person who, according to the rules laid down in or pursuant to law, is not allowed to handle the deposited mate- rial. Nor shall any sample be fum ished to any person if, due to the dangerous propertie s of the material, his handling of the sample is supposed to involve obvious danger.

(7) Notwithstanding subsection 6 hereof, the applicant may request that, until a patent has been granted, the furnishing of a sample shall only be effected to an expert in the art. If an ap- plication is refused, withdrawn or deemed to be withdrawn, the applicant may request that a sam- ple of the deposited material shall only be fur- nished to an expert in the art for 20 years from the date on which the patent application was filed. The Minister for Business and Industry shall lay down provisions for the submission of a request for furnishing, for the time limit for presenting such requests and prescribing who may be used as en expert.

(8) The request for the furnishing of the sam- ple shall be filed with the Patent Authority a~d shall contain a declaration to observe the restric- tions on the use of the sample which appear from rules laid down by the Minister for Business and Industry. If the sample is to be furnished to an expert in the art, the declaration shall instead be given by the latter.

Section 23

(1) II' an opposition has been tiled , the propri- etor of the patent shall be notified accordingly

and be given an opportunity to file his observa- tions on the oppo sition .

(2) The Patent Authority may examine an op- position eve n though the patent has terminated or wi ll terminate under sections 51, 54 or 96 of this Act, even if the oppos ition is withdraw n, or even if the opponent dies or loses his capacity to enter into legal transactions.

(3) The Patent Authority may revoke a patent or maintain it unamended or amended. If the Pat- ent Authority finds that the patent may be main - tained as ame nded, and it has been established that the proprietor of the patent consen ts to this, the patent spec ifications sha ll be ame nded ac- cording ly after the pro prietor of the patent has paid the prescribed fee for publi cation hereof. Copies of the amended patent spec ifica tions shall be obtainab le from the Patent Authority.

(4) II' the proprietor of the patent does not ap- prove the main tenance of the patent as ame nded or does not pay the fee for publ icat ion of new patent specifications in time, the patent shall be revoked.

(5) The Patent Authority shall adverti se its de- cis ion on the opposition.

Section 24

(1) An appeal from the final decision of the Patent Office concerning a patent application may be tiled by the applicant with the Patent Board of Appea l. The proprietor of the patent may file an appea l with the Patent Board of Ap- peal, if a patent has been revoked, or if the Patent Office finds that the patent may be maintained as amended followi ng an opposi tion. The opponent may file an appeal with the Patent Board of Ap- pea l, if a patent is maintained unamended , or if the Patent Office finds that the patent may be maintained as amended despite a duly filed op- position. If the opponent withdraws his appea l, such appeal may neve rtheless be examined when circumstances make it desirable.

(2) Dec isions refusing a request for resump- tion under section 15 (3), or sec tion 19 (3) of this Act or com plying with a request for transfer un- der sec tion 18 of this Act may be appealed agai nst by the app licant. Decisions rejec ting a re- quest for the transfer of the application may be appea led against by the person making the re- quest.

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(3) Decision s refu sing a request under section 22 (5) of this Act may be appealed against by the person making the request.

Section 25

(1) Appea ls und er section 24 of this Act sha ll be filed with the Patent Board of Appea l not later than 2 months after the date on which the party concerned was notified of the deci sion by the Patent Office. The prescribed fee shall be paid within the same time limit. Failure to do so shall cause the appeal to be refu sed .

(2) The decisions of the Patent Board of Ap- peal may not be brought before any higher ad- mini strative authority.

(3) Proceedings to test deci sion s of the Patent Office which may be appealed against to the Pat- ent Board of Appeal may not be brought before the courts until the deci sion of the Patent Board of Appeal has been given, cf. however secti on s 52 and 53 of this Act. Proceedings to test deci- sions by which the Patent Board ofAppeal refu s- es an appli cation for a patent or revokes a patent shall be brought within 2 months after the date on which the party concerned wa s notified of the decision.

(4) The provisions of section 22 (5) of this Act sha ll apply mutatis mutandis with respect to doc- ument s received by the Patent Board of Appeal.

Sec tion 26

If an application which is available to the Pub- lic is finally refused or shelved, notice hereof sha ll be publ ished .

Sec tion 27

Granted patent s shall be entered in a Register of Patents whi ch shall be kept by the Patent Au- thority.

Part 3

International patent app licat ions

Section 28

(1) An "internation al patent application" means an appli cation under the Patent Coopera- tion Treaty, done at Washington on 19 Jun e 1970.

(2) An internat ional patent application shall be filed with a patent authority or an international

Organisation which is competent under the Trea- ty and the Regulations to receive such applica- tion (receiving Office). An international patent application may be filed with the Patent Author- ity of this country in accordance with rules laid down by the Minister of Busines s and Industry . The applicant shall pay the fee prescribed for the application to the Patent Authority .

(3) The provisions of sections 29 to 38 of this Act shall apply to international patent applica- tions designating Denmark.

Section 29

An international patent application which has been accord ed an international filing date by the receiving Office shall have the same effect as a patent application filed in this country on that date. The provision ofsection 2 (2), 2nd clause , of this Act shall, however, not apply unless the ap- plication has been proceeded with under section 31 of this Act.

Section 30

An international patent application shall be considered withdrawn as far as Denmark is con- cerned in the cases referred to in Article 24 ( I) , (i) and (ii), of the Treaty .

Section 31

(1) If the applicant wishes to proceed with an international application with respect to Den- mark, he shall within 20 months from the inter- national date of filing or, if priority is claimed, from the priority date pay the prescribed fee to the Patent Authority and file a translation into Danish of the international application to the ex- tent prescribed by the Minister for Business and Industry or, if the application is written in Dan- ish, a copy of the application.

(2) If a request is made by the applicant to sub- ject an international application to an interna- tional preliminary examination , and if within 19 months from the date referred to in subsection 1 hereof he declares, in accordance with the Trea- ty, that he intends to use the result s of that exam- ination in Denmark (election of Denmark), he shall compl y with the requirements of subsec- tion I hereof within 30 months from the said date.

(3) If the applicant has paid the prescrib ed fee within the time limits fixed in subsections I and

9

2 hereof, the prescribed translation or copy may be filed within a further period of 2 months pro- vided that a prescribed additional fee is paid pri- or to expiry of the further period .

(4) If the applicant fails to fulfil the requ ire- ment s of this section, the application shall be considered withdrawn as far as Denmark is con- cerned .

Section 32

If the applicant withdraws a reque st for an in- ternational preliminary examination or an elec - tion of Denmark, the international patent appli- cation shall be considered withdrawn as far as Denmark is concerned, unless the withdrawal has been effected prior to the expiry of the time limit applicable under section 31 (I) of this Act , and the applic ant proceeds with the application prior to the expiry of the time limits laid down in section 31 (I ), cf. subsec tion 3, of this Act.

Section 33

(1) When an international patent application has been proceeded with under section 31 of this Act , the provisions of Part 2 of this Act shall ap- ply to the application and the examination and further proce ssing thereof with the deviations provided for in this section and in sections 34 to 37 of this Act. The examination and further proce ssing of the application shall only be com- menced prior to the expiry of the time limits ap- plicable under section 31 ( I) or (2) of this Act , if the applicant so requests.

(2) The provision of section 12 of this Act shall only be applicable as from the time when the Patent Authority may commence the exami- nation and other proce ssing of the application.

(3) The provisions of section 22 (2) and (3) of this Act shall apply even before the application has been proceeded with when the applicant has complied with his obligation under section 31 of this Act to file a translation of the application or, if the application is writt en in Danish, when the applicant has filed a copy thereof with the Patent Authority.

(4) For the purpo ses of sections 48,56 and 60 of this Act, an internat ional patent application shall be deemed to have been made available to the public when it has been made available under subsection 3 hereof.

(5) If the application complies with the re-

quirements relatin g to form and contents provid- ed for in the Treaty, it shall be accepted in that respect.

Section 34

Patent shall only be granted or refused in re- spect of an international patent application after expiry of the time limit laid down by the Minis- ter for Business and Industry, unless the appli- cant has consented to the application being de- cided upon prior thereto .

Secti on 35

Without the consent of the applicant, the Pat- ent Authority shall not grant a patent for an inter- national patent appli cation or publi sh it prior to its publication by the International Bureau of the World Intellectual Property Organization (WIPO) or prior to the exp iry of 20 months from the international filing date or, if priority is claimed , from the date of prior ity.

Section 36

(1) Ifany part of an international patent appli- cation has not been the subject of an internation- al sea rch or an international preliminary exami- nation because the application has been deemed to relate to two or more mutuall y independent in- ventions, and the applicant has not paid the addi- tional fee under the Treaty within the prescribed time limit , the Patent Auth ority shall review the finding to determin e whether it was j ustified. If this is found to be the case, the said part of the appli cati on shall be considered withdrawn be- fore the Patent Author ity, unless the applicant pays the prescribed fee within 2 month s afte r the date on which the Patent Authority notifi ed him of the result of the review. If the Patent Authority considers that the findin g was not justified, it shall proceed with the examination and other processing of the application in its entirety.

(2) The applicant may appea l agai nst a deci- sion under subsec tion I hereof by which an ap- plication is found to relate to two or more mutu- ally independent inventi ons. The provisions of section 25 ( I) to (3) of this Act shall apply muta- tis mutandis.

(3) If the appeal is dismissed, the time limit for payment of the fee under subsection 1, 2nd

clause, hereof shall be calculated from the date on which the final decision is give n.

10

Section 37

If any part of an intern ational application has not been the subject of an intern ational prelimi- nary examination because the appl icant has re- stric ted the claims at the demand of the interna- tional Preliminary Examination Authority, that part of the application shall be con sidered with- drawn before the Patent Authority , unless the ap- plicant pays the prescribed fee wi thin 2 months after the date on which the Patent Authority in- vited him to pay with reference to the restriction of the examination carried out.

Section 38

(1) If a receiving Office has refu sed to accord an international filing date to an international patent application, or ifit has decided that the ap- plication or the designation of Denmark shall be considered withdrawn, the Patent Authority shall, at the request of the applicant, review the deci sion to determine whether it was ju stified. The same shall appl y to any deci sion from the International Bureau according to which an ap- plicat ion shall be considered withdrawn.

(2) A request for a review under subsec tion I hereof shall be presented to the International Bu- reau prior to the expiry of a time limit laid down by the Minister for Business and Industry. The applicant shall, prior to the expiry of the same time limit and to the extent prescribed by the Minister for Business and Industry, file a trans- lat ion of the application with the Patent Author- ity and pay the prescribed appl ication fee.

(3) If the Patent Authori ty finds that the deci- sion of the rece iving Office or the Internat ional Bureau was not justifi ed, the Patent Authority shall examine and process the application under Part 2 of this Ac t. If no international fi ling date has been acco rded by the receiving Offi ce, the ap plication shall be deemed to have been filed on the date which in the opinion of the Patent Au- thority should have been accorded as the intern a- tional filing date. If the appli cation complies with the requirements relating to form and con- tent s provided for in the Treaty, it shall be ac- ce pted in that respect.

(4) The provision of section 2 (2), 2nd clause, of this Act shall apply to applications to be ex- amined and processed pursuant to subsection 3 hereof, prov ided that the application is made

avai lable to the publ ic under section 22 of this Act.

Part 4

Extent ofthe protection and term ofthe patent

Sectio n 39

The extent of the prot ection confe rred by a patent shall be determined by the claim s. for the interpretation of the claims the descr ipt ion may serve as a guide .

Section 40

A granted patent may be maintained until 20 yea rs have elapsed from the date of filing of the patent application. A renewal fee sha ll be paid for the patent in respect of eac h fee yea r begi n- ning after the grant of the patent.

Part 5

Payment ofrenewal f ee

Section 41

(1) The renewal fee sha ll fall due on the last day of the month in which the fee year beg ins. The renewal fee in respect of the first two fee years sha ll, however, only fall due at the same time as the fee in respect of the third fee year. Renewal fees may not be paid earlier than 3 months before the due date.

(2) For a later application as provided for in section II of this Act, the renewal fee in respect of fee years having begun befo re the date of fil- ing of the later applicat ion or beginn ing within 2 months afte r that date sha ll in no case fall due be- fore 2 month s have elapsed afte r the sa id date. For an international patent application, renewal fee, in respect of fee yea rs having begun before the date on which the applicat ion was proceeded with under section 3 1 of this Act or taken up for exa mination and other processing under sec tion 38 of this Act or beginning within 2 months after that date shall in no case fall due before 2 months have elapsed after the dat e on which the applica- tion was proceeded with or taken up for exa mi- nation and other processing.

(3) Any renewal fee may, together with the prescribed , additio nal fee, be paid within 6 months afte r its due date.

(4) The Danish Patent and Trademark Office

11

sha ll collect renewal fees from the applicant or the prop rietor of the patent or an appointed age nt, if any, but the Danish Patent and Trade- mark office shall not be held responsible for loss of rights as a consequence of failure to collec t.

Section 42

(1) If the invent or is the applicant or the pro- prietor of the patent , and if it is deemed to in- vo lve great difficulti es for ham to the renewal fees, the Patent Authority may grant him a res- pite for the payment thereof, provided that a re- quest to that effect is submitted not later than on the date on which the renewal fees fall due for the first time. Respites may be granted for up to 3 yea rs at a time, but no longer than until 3 years have elapsed from the grant of the patent. Any req uest for a prolongation of a respit e shall be submitted not later than on the date on which the granted respite ex pires.

(2) If a request for a respit e or a prolongat ion of a respite is refused, payment within 2 month s thereaft er shall be regarded as payment in due time.

(3) Any renewal fee for the payment of which a res pite has been granted according to subsec- tion I hereof may, togeth er with the same addi- tional fee as refe rred to in sect ion 41 (3) of this Act, be paid within 6 months after the date until whic h the respite has been granted.

Part 6

Licensing, transfer, etc.

Section 43

If the propri etor of the patent has granted an- other person a right to exploit the inventi on com- mercially (l icense), the licensee may not transfer that right to others in the absence of an agree- ment to the con trary .

Section 44

(I) The transfer of a patent, the gra nt of a li- cense, pledging or exec ution proceedin gs levied on the patent or the commenceme nt of insolven- cy proceedings agai nst the proprietor shall, on request, be record ed in the Register of Patents.

(2) If it is proved that a regis tered license has terminated, the license sha ll be deleted from the Register.

(3) The provisions of subsections I and 2 here- of shall also apply to compulsory licenses and rights under section 53 (2) of this Act.

(4) Legal proceedings in respect of a patent may always be brought against the person who is entered in the Register as proprietor of the pat- ent, and any notification from the Patent Author- ity may be sent to him.

Section 45

(1) If a patent invention is not worked to a rea- sonable extent in this country when 3 years have elapsed from the grant of the patent and 4 years have elapsed from the filing of the patent appli- cation, any person wishing to work the invention in this country may obtain a compulsory license to do so, unless there are legitimate reasons for failure to work the invention.

(2) The Minister for Business and Industry may direct that for the purposes of subsection I hereof working of the invention in another coun- try shall be equivalent to working in this country. Such a provision may be made subject to reci- procity.

Section 46

(1) The proprietor of a patent for an invention, the use of which is dependent on a patent or a registered utility model which belongs to anoth- er person may obtain compulsory license for use of the protected invention of the latter patent or the protected model on utility model registration if the former invention makes up an essential technical progress of substantial economic im- portance.

(2) The proprietor of the patent of the inven- tion or of the registered utility model for which use compulsory license has been granted pursu- ant to the provision in (I) shall on reasonable terms be able to obtain compulsory license for use of the other invention.

Section 46 a

(1) An owner ofa variety who cannot obtain or exploit a plant variety right without infringing a prior patent may apply for a compulsory license for use of the invention, where the compulsory license for the exploitation of the plant variety to be protected, against payment of an appropriate royalty. Compulsory license will only be granted provided that the owner of the variety proves that

12

the variety constitutes essential technical progress of substantial economic importance in relation to the invention.

(2) Where , under the Danish Plant Variety Protection Act, a proprietor of a patent has ob- tained a compulsory license to exploit a protect- ed plant variety, the owner of the plant variety has the right , on reasonable terms, to obtain cross-license for use of the invention.

Section 47

When required by important public interests, any person who wishes to exploit an invention commercially for which another person holds a patent may obtain a compulsory license to do so .

Section 48

(1) Any person who, in this country, at the time when a patent application was made availa- ble to the public, was commercially exploiting the invention for which a patent is applied for, may, if the application results in a patent, obtain a compulsory license to exploit the invention, if very special circumstances make it desirable, and he had no knowledge and could not reason- ably have obtained any knowledge of the appli- cation. Such a right shall also, under similar con- ditions, be enjoyed by any person who had made substantial preparations for commercial exploi- tation of the invention in this country.

(2) Such a compulsory license may include the time preceding the grant of the patent.

(3) The Minister for Business and Industry may direct that for the purposes of subsection I herof exploitation of the invention in another country shall be equivalent to exploitation in this country. Such a provision may be made subject to reciprocity.

Section 49

(1) Compulsory license shall only be granted to persons who by agreement have neot been able to obtain license on reasonable terms and who may be regarded as being able to make use of the invention in a reasonable and proper man- ner and in compliance with the license.

(2) A compulsory license shall not prevent the proprietor of the patent from exploiting the in- vention himself or from granting licenses to oth- ers .

(3) Compulsory license can only be trans-

ferred to others together with the establishment in which it is used or in which the utilisation was intended. For compulsory license filed in ac- cordance with Section 46( I) it shall moreover be applicable that transfer of compulsory license shall take place together with the patent the use of which is dependent on a patent or a registered utility model which belongs to another person.

(4) Compulsory license concerning semicon- ductor technology can only be filed for public , non-commercial use or for terminating an anti- competitive practice, which has been established by decree or administrative decision .

Section 50

(I) The Copenhagen Maritime and Commer- cial Court shall decide as the court of first in- stance whether a compulsory license shall be granted and shall also determine the extent to which the invention may be exploited, fix the compensation and lay down the other term s of the compulsory license. If circumstances should change considerably, the Court may , at the re- quest of either party, cancel the licen se or lay down new terms of the license.

Part 7

Termination ofpatent, administrative re- examination, etc.

Section 51

If any renewal fee is not paid in accordance with the rules laid down in sections 40 , 41 and 42 of this Act , the patent shall lapse as from the be- ginning of the fee year in respect of whi ch the fee has not been paid.

Section 52

(I) A patent may be revoked by a court deci- sion if: (i) it has been granted notwith standing that the

requirements under Sections I and 2 of this Act are not complied with

(ii) it relates to an invention which is not dis- closed in a manner sufficiently clear to ena- ble a person skilled in the art to carry out the invention,

(iii) its subject-matter extends beyond the con- tents of the application as filed, or

(iv) the protection conferred by the patent has

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been extended after the Patent Authority has notified the applicant that patent will be granted.

(2) A patent may, however, not be revoked in its entirety on the gro und that the proprietor of the patent was only partially entitled to the pat- ent.

(3) With the exceptions provided for in sub- section 4 hereof proceedin gs may be instituted by any person.

(4) Proceedin gs on the ground that the patent has been grant ed to another person than the one entitled thereof under section I of this Act, may only be instituted by the person claiming to be entitled to the patent. Such proceedin gs shall be brou ght within I year after the entitled person obt ained knowledge of the grant of the patent and of the other circumstances on which the pro- ceedings are based . I fthe proprietor of the patent was in goo d faith when the patent was granted or when he acquired the patent , the proceedings may not be brought later than 3 yea rs after the gra nt of the patent.

Sec tion 53

(1) If a patent has been granted to another per- son than the one entitl ed thereto under sec tion I of this Act, the court shall tran sfer the patent to the entitled person, if he so claim s. The provi- sions of sec tion 52 (4) of this Act conce rning the time for institution of the proceedin gs shall ap- ply mutatis mutandis,

(2) The person who is depri ved of the patent sha ll, if he in good faith is exploiting the inven- tion commercially in this country or has made substantial preparations for such exploitation, be entitled, for a reasonable compensation and on rea sonable conditions in other respects, to con- tinue the exploitation alread y commenced or to impl ement the planned exploitation retainin g its genera l character. Such a right sha ll also, under the same conditions, be enjoyed by holders of registered licenses.

(3) Rights under subsec tion 2 hereof may only be transferred to others together with the busi- ness in which they are exploited or in which the exploitation was intended .

Sec tion 53 a"

Proce edin gs instituted as to revo cation whil e an oppos ition pursuant to Section 2 1 remains to

be conclusively considered by the Patent Au- thority may be suspended by the court until a fi- nal decision has been made by the Patent Au- thority.«

Section 53 b4)

(1) Any person may file a request with the Pat- ent Authority to the effect that a patent granted by the Patent Authority or granted with effect for Denmark pursuant to Section 75 be re-examined.

(2) A request pursuant to subsection I may not be filed during the period allowed for opposition, or as long as an opposition remains to be finally decided upon. Where proceedings before the court as to a patent remain to be finally decided upon, a request pursuant to subsection I may not be filed as to the patent in question.

(3) Where proceedings as to a patent are brought before the court prior to a fina l decision on a request pursuant to subsection I relating to the same patent, the Patent Authority shall tem- porarily shelve the consideration of the request pending the conclusive sett lement of the pro- ceedings, unless the request has been filed by the patent holder.

(4) Where a request for re-examination has been filed, the patent holder shall be notified thereof and be invited to file his observations. The Patent Authority shall advertise the filing of a request for re-examination.

(5) The Patent Authority may consider a re- quest for re-examination, even where the patent has terminated or will terminate pursuant to Sec- tions 51, 54, or 96. The Patent Authority may also consider the request, even where the request is withdrawn, or the person having requested the re-examination dies or loses his capacity to enter into legal transactions.

(6) The request as to administrative re-exami- nation shall pursuant to subsection I be accom- panied by the prescribed fee.«

Section 53 c

(1) A request for re-examination by persons other than the proprietor of the patent shall only be filed on the grounds for revocation referred to in section 52 (I) of this Act.

(2) The Patent Authority may revoke the pat- ent or maintain the patent, amended or unamend- ed. The Patent Authority shall examine whether the request can be met, and, if so, whether the

14

grou nds referred to in section 52 (I) of this Act will prevent the patent from being maintained as amended.

Section 53 d

(1) If a request from persons other than the proprietor of the patent cannot be met, the re- quest shall be refused, and the patent shall be maintained unamended.

(2) If the request is met, but the patent cannot be maintained as amended, the Patent Authority shall revoke the patent. If the patent may be maintained as amended, the patent shall be amended accordingly, if the proprietor of the patent approves the amended wording of the Pat- ent Authority. If the proprietor of the patent does not approve the amended wording, the patent sha ll be revoked.

(3) When a final decision has been made to maintain a patent as amended, the proprietor of the patent shall pay the prescribed fee for publi- cation of new patent specifications within the prescribed time limit. Failure to pay the fee in time shall cause the patent to be revoked .

(4) The Patent Authority shall advertise its de- cision on an adm inistrative re-examination.

Section 53 e"

(1) The patent holder himself may request that his patent be restricted by amending the descrip- tion, claims, or drawings on the conditions re- ferred to in Section 53 b (2) and (6) .

(2) The Patent Authority shall then examine whether the grounds referred to in section 52 (I) of this Act will prevent the patent from being maintained in the amended form desired by the proprietor of the patent. If the desired restriction can then be approved, the patent shall be amend- ed accordingly, and section 53 d (3) and (4) of this Act shall apply mutatis mutandis, however, the patent shall be declared to have ceased to have effect, if the fee for publication of new pat- ent specifications is not paid in time.

(3) If, on the other hand, the patent cannot be maintained in the desired restricted form, such request for restriction shall be refused.

Section 53 f

If a patent is amended under sections 53 d or 53 e of this Act, copies of the new patent speci- fications sith the amended description, drawings

15

and claims shall be available from the Patent Au- thority as from the date when this is advertised under section 53 d (4) of this Act.

Section 54

(1) If the proprietor of a patent surrenders the patent to the Patent Authority the Patent Author- ity shall declare the patent to have ceased to have effect.

(2) If proceedings have been instituted for the transfer ofpatent, the patent shall not be declared to have ceased to have effect, until a final deci- sion has been given in the proceedings.

Section 55

When a patent has lapsed or has been declared to have ceased to have effect or has been revoked or transferred to another person by a final court decision, the Patent Authority shall publish a no- tice to that effect.

Section 55 a

If a patent is revoked wholly or partially, the patent shall, to the extent that it has been re- voked, be considered not to have had the effects referred to in section 3 of this Act already from the date of filing of the patent application. If a patent is restricted at the request ofthe proprietor of the patent, the amendment shall only take ef- fect from the date when a notice to that effect is advertised.

Part 8

Obligation to give information about patents

Section 56

(1) An application for a patent who invokes his patent application against another person, before the files of the application have become availa- ble to the public, shall be under an obligation on request to consent to the said person getting ac- cess to inspect the files of the application. If the application comprises a deposited sample of bi- ological material as referred to in section 8 a of this Act, the said person shall also have a right to obtain a sample. The provisions of section 22 (6), 2nd and 3 ' d clause, (7) and (8) of this Act shall apply in those cases.

(2) Any person who, by direct communication to another person or in advertisements or by in-

scription on goods or their packaging or in any other way, indicates that a patent has been ap- plied for or granted, without indicating at the same time the number of the application or the patent, shall be under an obligation to give such information to any person requesting it without undue delay. If it is not explicitly indicated that a patent has been applied for or granted, but cir- cumstances are such as to create that impression, information as to whether a patent has been ap- plied for or granted shall be given on request without undue delay.

Part 9

Liability to punishment. liability for damages. etc.

Section 576)

(1) Any person who intentionally infringes the exclusive right conferred by a patent (patent in- fringement) shall be liable to a fine. Under ag- gravating circumstances, including in particular if the purpose of the infringement is a significant and obviously unlawful profit, the penalty may increase to imprisonment of not more than one year.«

(2) Companies etc . (legal entities) may be held criminally liable according to Part V of the Dan- ish Penal Code.

(3) Proceedings shall be brought by the injured party in case of infringement. Proceedings shall, however, be brought at the request of the injured party in case of infringements under subsection I, 2nd clause, hereof by the public authorities.

Section 58

(1) Any person who intentionally or negligent- ly commits patent infringement shall be liable to pay a reasonable compensation for the exp loita- tion of the invention as well as damages for the further injury, which the infringement may have caused.

(2) Ifany person commits patent infringement which is not intentional or due to negligence, he shall be liable to pay compensation and damages under the provisions of subsection I hereof, if and to the extent this is found reasonable.

Section 59

(1) In the case of patent infringement the court may, to the extent this is found reasonable and

when so claimed, make decisions to prevent the abuse of products man ufactured in acco rdance with the paten ted invention or of any apparatus- es, tools or other articles the use of which would involve patent infringe ment. It may thus be de- cided that the article shall be altered in a speci- tied manner or destroyed or, in the case of a pat- ented art icle, that it sha ll be surrendered to the inj ured party against compensation. this, howev- er, shall not apply to any person who in good faith has acquired the said article or has acquired rights in respect of the article, and who has not himself comm itted patent infringement.

(2) Under very special circumstances, the court may, notwithstand ing the provisions in subsection I hereof and when so clai med, grant permission to dispose free ly of the produ cts, ap- paratuses, tools and other articles referred to in subsection I hereof dur ing the term of the patent or part of that term aga inst a reasonable compen- satio n and on reasonable conditions in other re- spects.

Section 60

(I) If any person exploits an inve ntion com- mercia lly without permission afte r the files of the applicatio n have been made available to the public, and the application result s in a patent, the provisions concerning patent infringement, with the exce ption of section 57 of this Act, shall ap- ply mutatis mutandis. The protection conferred prior to grant of patent shall, however, only ex- tend to subjec t-matter disclosed both in the claims as worded at the time when the applic a- tion was made available to the publ ic and in the patent as granted or maintained in amended form under sec tion 23 (3) of this Act.

(2) The person concerned shall only be liable to the extend referred to in section 58 (2) of this Act to pay damages for injury caused by in- fringement committed prior to the advertisement of the gran t of a patent under section 20 of this Act.

(3) Claims for damages under subsection hereof shall not be statute-barred earlier than year after the grant of the patent.

Sec tion 6 1

In proceedings for patent infringement the in- validity of the patent may only be put in issue if a claim for revocation is set up aga inst the pro-

16

prietor of the patent, possibly after the latter has been summoned under the rules laid down in section 63 (4) of this Act. If the patent is re- voked, the provisions of sections 57 to 60 of this Ac t shall not apply.

Section 62

(I) Any person who, in the cases referred to in sec tion 56 of this Act, fails to comply with his obligations or give s false information shall be punished by a fine , provided that a severer pun- ishment is not provided for by other legislation, and shall be liable to compensate the injury ca used thereby to the extent this is found reason- able.

(2) The provi sions of section 57 (2) and (3) of this Act shall apply mutatis mutandis.

Section 63

(I) Any person who institutes proceedings for the revocation of a patent, for the transfer of a patent or for the grant of a compulsory licence shall at the same time notify the Patent Authority accordingly and by registered mail notify any li- censee who is entered in the Regi ster of Patents and whose address is recorded in that Register of the proceedings. Any person reque sting admin- istrative re-examination of a patent shall at the same time notify the said licensees to that effect. any licensee who wishe s to institute proceedings for patent infringement shall in a similar way no- tify the proprietor of the patent of the proceed- ings , provided that the latter's address is record- ed in the Register.

(2) If the plaintiff, or the per son who has re- quested an administrative re-examination, does not prove on the day on which the case come s up for trial or when a request for re-examination is filed that notification under subsection I hereof has been effected, the court or, in case of a re- quest for re-examination, the Patent Authority may fix a time limit for compliance with the re- quirements of subsection I hereof. If the said time limit is not observed, the case shaH be dis- missed.

(3) In proceedings for patent infringement brought by the propri etor of the patent the de- fend ant shall notify the Patent Authority and reg- istered licensees in accordance with the rules laid down in subsection I hereof, ifhe intends to claim revocation of the patent. The provisions in

subsection 2 hereof shall apply, mutatis mutandis so that the claim for revocation shall be dismissed, if the time limit which has been fixed is not observed.

(4) In proceedings for patent infringement brought by a licensee, the defendant may sum- mon the proprietor ofthe patent to attend without regard to his venue in order to claims against him that the patent be revoked. The provisions of Part 34 of the Administration of Justice Act shall ap- ply mutatis mutandis.

Section 64

(1) The legal proceedings listed below shall be brought in the High Court as the court of first in- stance :

(i) proceedings concerning the right to an in- vention which is the subject-matter of an ap- plication for a patent,

(ii) proceedings concerning the grant of a pat- ent, cf. section 25 (3) of this Act.

(iii) proceedings for the revocation ofa patent or for the transfer of a patent, cf. sections 52 and 53 of this Act, and proceedings concern- ing rights under section 53 (2) of this Act,

(iv) proceedings concerning rights under sec- tions 4 and 74 (2) of this Act,

(v) proceedings concerning patent infringe- ment, and

(vi) proceedings for the assignment of a patent and proceedings concerning voluntary li- cences.

(2) Applicants and proprietors of patents who are not residents of this country shall , in the pro- ceedings brought under this Act, be deemed to have their venue in Copenhagen.

Section 64 a

(I) If the subject-matter ofa patent is a proces s for the manufacture of a new product , the same product shall , when manufactured by any other person than the proprietor of the patent, be deemed to be manufactured on the basis of the patented process , unless evidence to the contrary is submitted.

(2) In connection with the submission of evi- dence to the contrary, the defendant's justified interest in protecting his manufacturing and business secrets shall be considered.

17

Section 65

Office copie s of court decisions in the cases referred to in sections 50 and 64 (1) of this Act shall be communicated to the Patent Authority on the initiative of the court.

Part 10

Miscellaneous provisions

Section 667)

The Patent and Trademark Office may invite the patent holder to appoint an agent residing in the European Economic Area (EEA) to receive services and other notifications as to the patent on his behalf. The name and address of the agent shall be entered in the Register of Patents.

Section 67

(I) Appeal s from the decisions of the Patent Office under sections 44, 53 d, 53 e, 72 (1) and (2) , 73 and 96 of this Act may be filed by the ap- plicant, the proprietor of the patent or the person who has requested an administrative re-exami- nation or the termination of the patent with the patent Board of appeal not later than 2 months after the date on which he was notified of the de- cision. Other parties interested in the said deci- sion may file a similar appeal not later than 2 months after the advertisement of the decision.

(2) The fee prescribed for the appeal shall be paid within the time limit referred to in subsec- tion 1 hereof. Failure to do so shall cause the ap- peal to be dismissed.

(3) The provisions in section 25 (2) to (4) shall apply mutatis mutandis.

Section 68

(I) The Minister for Business and Industry shall fix the amounts, etc . of the fees provided for in this Act and of handling fees, etc.

(2) As far as renewal fees are concerned, the Minister for Business and Industry may direct that one or more of the first fee years shall be ex- empt from fees.

Section 69

(I) The Minister for Business and Industry shall lay down further provisions concerning patent applications and their examination, con-

cerning the examination of oppositions, admin- istrative re-examination , reestablishm ent, waiv- er of patents, concerning the arrangement and keeping of the Register of Patents, con cernin g the publication and contents of the Danish Patent Gazette, concerning exchange of electronic data with the Patent Authority and concerning the procedures of the Patent Office. It may thus be prescribed that the records of the Patent Author- ity relating to applications filed shall be ava ila- ble to the publ ic. The Minister for Business and Industry may lay down specific rules concerning the days on which the Patent Office shall be closed.

(3) The Minister for Business and Industry may furthermore direct that, at the request of the Patent Authority and within a time limit fixed by that Authority, any applicant who in any count ry has filed a corresponding application for a patent shall furnish information about the result of the examination as to the patentabilit y of the inven- tion which has been communicated to him by the patent auth ority of that country and transm it a copy of the correspondence with the said author- ity. However, no obligation to furnish inform a- tion may be prescribed in respect of any applica- tion referred to in Part 3 of this Act which has been the subject of an internati onal preliminary examination on which a report has been filed with the Patent Authority.

Section 70

For inve ntions relating to war material or proc- esses for the manu facture of war materi el, secret patents may be granted in acco rdance with the special provisions laid down to that effect.

Section 71

(1) The Patent Office may on requ est under- take the perform ance of special tasks in the na- ture of technological service.

(2) The Minister for Business and Industry shall lay down rules governing that service and the payment therefor.

(3) Excep t for Section 4 (2) the Act on Public Access to Documents in Admini strative Files shall not apply to the tasks mentioned in ( I) .

Sec tion 72

(I) If, apart from the cases referred to in sub- section 2 hereof, the non-observance of a time

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limi t vis-a-vis the Patent Authority prescribed by or provided for in this Act causes a loss of right s to an applicant who has taken all due care rea- so nably required , the Patent Authority shall on requ est re-establi sh his rights. Th e request shall be filed with the Patent Authority within 2 months from the remov al of the obstacle causing non-observance of the time limit though not later than I year after the expiry of the time limit. the omitted act shall be completed and the fee pre- scribed for the re-establishment of rights shall be paid within the same time limit s.

(2) The provisions of subsection I hereof shall apply mutatis mutandis, if an applicant or a pro- prietor of a patent has not paid a renewal fee with in the time limit prescribed in section 41 (3) or section 42 (3) of this Act provided that the re- que st for re-establi shment of rights is filed and the renewal fee is paid not later than 6 months af- ter the expiry of the time limit.

(3) The provision s of subsection I hereof shall not apply to the time limit referr ed to in section 6 ( I) of this Act.

Section 73

(1) If, in the cases referred to in sec tion 31 of this Act, the applicant has availed himself of mail ing, and the mail is not received in due time , but the act is completed within 2 months after the date on which the applicant noti ced or should have noticed that the time limit was exceeded and not later than I year after expiry of the time limit, the Patent Authority shall re-establi sh the rights, provided that (i) within 10 days preceding the expiry of the

time limit the postal serv ice was interrupted on acco unt of war, revolution, civil disorder, strike, natural calamity or other like reason in the locality where the sender is stay ing or has his place of business, and the mailin g to the Patent Authority is effe cted within 5 days after the resumption of the postal serv - ice, or

(ii) the mail ing was effected by registered mail to the Patent Authority not later than 5 days prior to the expiry of the time limit though only if the mailing was effected by airmail, where possible, or if the sender had eve ry reason to believe that surface mail would not arrive later than 2 days after the date of mail- ing.

(2) If the applicant wishes to have his rights re-

establ ished under subsec tion I hereof, he shall file a requ est to that effect wi th the Patent Au- thor ity before expiry of the time limit referred to.

Sec tion 74

(1) Wh en a requ est under sections 72 or 73 of this Act has been accepted and, in consequence , a patent appli cation wh ich has been shelved or refused after having been made ava ilable to the publ ic shall be furt her processed, or a lapsed pat- ent shall be rega rded as maintained, a notice to that effect shall be publ ished.

(2) Any person who, afte r expiry o f the time limit laid down for the resumption of proceed- ings in respect of a shelve d applicat ion or after refusal of the application or after adve rtisement of the lapse of the patent , but prior to the publi - cation of the notice under subsec tion I hereof, in goo d faith has co mmence d a commercia l exploi- tation of the inventi on in this country or made substantia l preparations for such ex ploitation, may con tinue the exploitation reta ining its ge n- eral character.

(3) Th e right provided for in subsec tion 2 here- of shall only be transferred to others together with the business in which it has arisen or in which the exploitation was intend ed.

Sec tion 74 a

If the Mini ster for Business and Indust ry trans- fers his authority under this Act to the Patent Of- fice, the Min ister may lay down rules co ncern ing the right of appea l inc luding rules to the effect that appea ls may not be brought before any high- er administrative autho rity.

Part 10 A

Europea n patents

Section 75

(1) A "E uropea n patent" is a pate nt that has been granted by the European Paten t Office pur- suant to the European Patent Conve ntio n done at Munich on 5 October 1973. A Europea n patent application is an applica tion filed in accordance with that Co nvention.

(2) European patent s may be granted for Den- mark .

(3) An application for a European patent shall

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be filed with the Europea n Patent Office, cf. However, the pro visions laid down in sec tion 70 o f this Act for sec ret patent s. An applica tion for a European patent may also be filed with the Pat- ent Authority of thi s country which shall forward the application to the European Patent Office. Th e appli cations referr ed to in Article 76 of the Co nve ntion sha ll onl y be filed with the Europea n Patent Office .

(4) The Provision s of sec tions 76 to 90 of th is Ac t shall apply to Europea n paten ts for Denm ark and to Euro pean patent app lica tions designatin g Denm ark.

Sec tion 76

A Europea n patent sha ll be conside red granted when the European Patent Offi ce has publi shed its decision to that effect. A European patent sha ll have the same effect as a patent gra nted by the Patent Authority o f this country and shall be subject to the same provisions as such a patent un less otherwise prov ided for in sec tions 77 to 90 of this Act.

Sec tion 77

(1) A Europea n patent sha ll only have effec t in thi s co untry provided that the applicant within the prescribed tim e limit files with the Patent Authority of this country a Dan ish translation of the tex t in which the patent , according to the comm unicat ion by the European Patent office to the applicant, is intended to be gra nted, and the applicant within the same time limi t pays the prescribed publicat ion fee. If the Europea n Pat- ent Office decides to maint ain a Europea n patent in amended form , this shall also apply to the amended form .

(2) Th e trans lation shall be ava ilable to the publi c. The translat ion shall, however, not be avai lable to the public, until the Europea n patent application has been published by the European Patent office,

(3) Whe n the trans lat ion has been filed and the fee paid , and the Euro pea n Patent Office has published its dec ision to let the patent applica- tion proceed to grant or to main tain the Europea n patent as amended, the Patent Authority of th is co untry sha ll publish a notice to that effec t. Co p- ies of the translat ion shall be obtainable from the Patent Authority without delay.

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Section 78

(1) The provisions of section 72 (I) of this Act shall also apply to the filing of the translation and payment of the fee pursuant to section (I) of this Act.

(2) Ifit is decided pursuant to section 72 of this Act that the tiling of the translation and payment of the fee in compliance with section 77 (I) of this Act are to be considered duly made, the Pat- ent Authority of this country shall publish a no- tice to that effect.

(3) Any person who, after expiry of the time limit laid down in section 77 (I) of this Act, but prior to the publication of the notice prescribed in subsection 2 hereof, in good faith has com- menced a commercial exploitation of the inven- tion in this country or made substantial prepara- tions for such exploitation shall have the rights provided for in section 74 (2) and (3) of this Act.

Section 79

The provision of section 52 (I) (iv) of this Act shall apply to European patents provided that ex- tension has taken place after the patent has been granted.

Section 80

If the European Patent Office revokes a Euro- pean patent wholly or partially, it shall have the effect as had the patent been revoked to the same extent in this country. The Patent Authority of this country shall publish a notice to that effect.

Section 81

(1) For a European patent a renewal fee shall be paid to the Patent Authority of this country for each fee year following the year in which the Eu- ropean Patent Office has published its decision to let the patent application proceed to grant.

(2) If the renewal fee for the European patent is not paid pursuant to subsection I hereof, cf. Section 41 of this Act, section 51 of this Act shall apply mutatis mutandis. With regard to the first renewal fee, it shall not fall due until 3 months after the date on which the patent is granted.

Section 82

(1) A European patent application for which the European Patent Office has fixed a filing date

shall from that date have the same effect in this country as an application filed in this country. If the application claims priority pursuant to the European Patent Convention from an earlier date than the filing date, such priority shall also apply in this country.

(2) A European patent application shall be deemed to have been covered by Section 2 (2), second clause when the designation fee for Den- mark has been paid under Article 79 (2) of the European Patent Convention. The same shall ap- ply to publication under Article 158 (I) of the Convention provided that such publication by the European Patent Office is considered equiv- alent to publication under Article 93 .

Section 83

(1) When a European patent application has been published in accordance with the European Patent Convention and the applicant has filed a translation ofclaims of the published application in Danish with the Patent Authority of this coun- try, the Patent Authority of this country shall make the translation available to the public and publish a notice to that effect.

(2) Ifany person without permission commer- cially exploits an invention which is the subject- matter of a European patent application after the publication of a notice pursuant to subsection I hereof and the application results in a patent for Denmark, the provisions concerning patent in- fringement shall apply. In such cases the patent protection shall, however, not apply and like- wise the person concerned shall only be liable for damages to the extent referred to in section 58 (2) of this Act.

(3) Claims for damages under subsection 2 hereof shall not be statue-baffed earlier than I year after the time limit for oppositions against the European patent has expired or after the Eu- ropean Patent Office has decided to maintain the patent.

Section 84

(1) If a European patent application or the des- ignation of Denmark is withdrawn or the appli- cation or designation is deemed to be withdrawn in accordance with the European Patent Conven- tion and the processing of the application is not resumed pursuant to Article 121 of the Conven- tion, this shall have the same effect as the with-

drawal of an appli cation before the Patent Au- thority of this country.

(2) If a Europ ean patent application is refused, it shall have the same effect as if the application had been refused by the Patent Authority of this country.

Section 85

(1) If the translations referred to in sec tions 77 and 83 of this Act do not comply with the text in the language of the proceedings before the Euro- pean Patent Offi ce, the patent protection sha ll only extend to subject-matter disclosed in both texts.

(2) In revocation proceedings only the text in the language of the proceedings shall apply.

Section 86

(1) If the applicant or the propri etor of the pat- ent files with the Patent Authority of this country a correction to the tran slation referred to in sec- tion 77 of this Act , and if he pays the prescrib ed publication fee, the corrected transl ation shall re- place the previous tran slation . The correction translation shall be available to the public pro- vided that the original translation is available to the public. When such correction has been filed, and the fee has been duly paid , the Patent Au- thority of this country shall publi sh a noti ce con- cerning the corre ction provided that the original translation shall be obtainable from the Patent Authority of this country without delay.

(2) If the applicant files a correction to the translation referred to in section 83 of this Act, the Patent Authority of this country shall publ ish a notic e to that effect and shall make the correc t- ed tran slation available to the public . When the notice has been published, the corrected tran sla- tion shall replace the original tran slation.

(3) Any person who , at the time the correc ted transl ation took effect, in good faith commer- cially exploited the inve ntion in this country in such a matt er that acc ording to the previou s translation it did not infrin ge the right s of the ap- plicant or the proprietor of the patent, or had made substantial preparations for such exploita- tion, shall have the right s provided for in sec tion 74 (2) and (3) of this Act.

Sec tion 87

(1) If the European Patent Offi ce re-establ ish-

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es the right s for a patent applicant or a proprietor ofa patent who has failed to observe a time limit, such decision shall also apply in this country.

(2) Any person who , after loss of right s has oc- curred, but prior to the re-establi shment of the rights and publ icat ion ofa notice to that effect by the European Patent Offi ce, in good faith com- menced comm ercial exploitation of the inven- tion in this country, or has made substantia l preparation s for such exploitation, shall have the rights provided for in section 74 (2) and (3) of this Act.

Section 88

(1) If an application for a European patent filed with a national patent authority is deemed to be withdrawn due to the fact that the European Patent Offi ce did not receive the application within the prescribed time limit, the Patent Au- thority shall at the request of the applicant regard the application as con verted into an application for a patent in this country, provided that (i) the reque st is filed with the national authori-

ty which received the application within 3 months after the applicant has been notified that the application is deemed to be with- drawn ,

(ii) the reque st is filed with the Patent Authority of this country within 20 months after the fil- ing date of the application or , if priority has been claimed , after the priority date, and

(iii) the applicant within a time limit to be fixed by the Mini ster for Business and Industry pays the prescribed appli cation fee and files a translation of the applicat ion in Danish.

(2) Provided that the patent applicat ion com- plie s with the requirements of the European Pat- ent Convention with regard to form , the applica- tion shall be accepted in that respect.

Sec tion 89

The provisions of Articles 9, 60, 126 and 13 1 of the European Patent Convention and the Pro- tocol on Jurisd ict ion and the Recognition of De- cisions in respect of the Right to the Grant of a European Patent (Protocol on Recognition) an- nexed to the Convention shall apply in this coun- try .

Sec tion 89 a

The provisions of this Act regarding deposit of

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biological material shall not apply to European patents.

Section 90

The Minister for Business and Industry shall lay down further rules for the implementat ion of the European Patent Convention and the imple- mentation of the provisions of this Part of the Act.

Part 10 B

Supplementary Protection Certificates

Section 9 1

(1) The Minister of Business and Industry may lay out rules which are necessary for the applica- tion in this Country of the European Co mmuni- ty' s regulations concerni ng the implementatio n of supplementary protection certificates.

(2) The Minister for Business and Industry shall fix the amounts, etc., of fees for f ling of an application for a cert ifica te, for resumption of the examination and further processing ofan ap- plication, for re-establishm ent of rights, for ad- ministrat ive re-examination, for the bringing of appeals before the Patent Board of Appea l and for the individual fee years.

(3) Sectio n 57 of this Order concern ing crimi- nall iabili ty for patent vio lation similarly applies to vio lation of the exc lusive right which is a con- sequence of a protection certificate as dealt with in subsection I.

(4) The Minister for Business and Industry may succeeding negotiations with the Faroe Is- lands and Greenland's home Rule lay down pro- visions on the regulations mentioned in subsec- tion I concerning certificates to be applicab le on the Faroe Islands and Greenland.

Pa r t 10 c

Community patents, etc.

Section 92

(1) A "Community patent" is a patent that has been granted by the Europea n Patent Office ac- cording to a European patent app lication, cf. Section 75 ( I) of this Act pursuant to the Com- mun ity Patent Convention laid dow n in the

Agreement relating to Community Patent s, done at Luxembourg on 15 Decemb er 1989.

(2) Community patent s may be granted for Denmark.

Section 93

(1) The provisions in the Agreement relating to Community Patents shall in this country apply to Community patents and applications for such patents.

(2) The Min ister for Business and Industry shall adve rtise the provisions laid down by the individ ual countries pursuant to Article 83 in the Co mmu nity Patent Convention.

Section 94

Sec tions 75 (3), 80, 82, 84, 87 and 88 of this Ac t shall app ly mutatis mutandis to Community patents and to applicatio ns for such patents.

Section 95

Rights under Article 32 ( I) of the Community Patent Convention shall on ly be accorded to ap- plicants for Com munity paten ts who have either forwa rded a Danish translation of the claims which have been adve rtised to the Patent Au- thority, or who have forwarded such translation to the person exploiting the invention in this country.

Section 96

(1) If a patent gra nted by the Patent Authority concerns an invention for which a Com munity patent or a Euro pean patent for Denmark has been issued to the same inventor or to his succes- sor in title, with the same date of application or, if priority has been claimed, with the same date of priority, the patent granted in this country un- der Article 75 ( I) and (2) of the Community Pat- ent Convention according to the decision of the Patent Authority or by court decision shall be terminated, wholly or part ially, provided that a request is made or proceed ings are instituted to that effect.

(2) Any perso n may request a decision by the Patent Authority or institute proceedings for ter- minatio n, wholly or partially, of a patent under subsec tion I hereof. Sections 53 a to f, 55, 55 a, 63, 64 and 65 of this Act shall apply mutatis

mutandis. The request shall be acco mpanied by the prescr ibed fee.

(3) Proceedings instituted concerning term ina- tion while a request in this respect has not been finally exa mined by the Patent Authority, may be suspended by the court until a fina l decision has been made by the Patent Authority.

Section 97

The Mini ster for Business and Industry shall lay down further rules for the implementation of the? provisions of this Part of the Act.

Part 11

Provisions as to entry intoforce and transitional provision

(1) This Act shall enter into force on I January

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1968. At the same time, The Patents Act, cf. Conso lidate Act No. 36 1 of 19 December 1958 sha ll be repealed. Furthermore, section 4 of the Dan ish Employee's Invent ions Act No . 142 of 29 April 1955 shall be repealed.

(2) Patents for inventions of food products and medici nal products and patent s for processes for the manu facture of food products supersc ript shall, however, not be granted until afte r a date to be fixed by the Minister for Busi- ness and Industry .

2. A patent whic h has been granted or will be granted under previous legislation shall only be revoked in acco rdance with the provisions of sec tion 24 of the previous Patents Act.

The Ministry ofBusiness and ln dustry. I t) August 2001

OLE ST A VAD

/ Moge ns Kring

"

2)

J)

4)

S)

6)

7 )

This Consolida te Patent s Act contains comme nts on entry into force and transitional provi sion s adopt ed durin g the 1999- 2000 and 2000 -200 I sittings of the Folketin g. Provisions as to entry into force and transitional pro vision s conce rn ing ear- lier ado pted amendm ent s o f the PatentsAct are to be found i The Conso lidate Patents Act No. 926 of22 September 2000 . The amendments in consequence of act on amendment o f the Patent s Act and the Trade Mark s Act no. 1258 of 20 De- cember 2000 menti oned below do not apply to The Faeroes and Greenland. Th ey ma y, however, come into force by Royal Decree for these parts of the country with the deviancies dictated by the specific Faeroese and Green land conditi ons. § 12 in the wording here stated entere d into force on I January 200 I, cf. Act no. 1258 01'20 December 2000. § 53 a in the wordi ng here stated entered into force on I Janu ary 200 1, cf. Act no. 1258 of20 December 2000 . § 53 b in the wording here stated entered into force on I January 200 I, cf. Act no. 1258 of 20 December 2000 .Requests for re-exam ination o f a patent handed in before 1 Janua ry 200 I will be treated according to the rule s hitherto in force . § 53 e in the wording here stated entered into force on I Janu ary 2001, cf. Act no. 1258 of20 December 2000 . § 57 in the wording here stated entered into force on 1 Janu ary 200 1, cf. Act no. 1258 of 20 December 2000. § 66 in the word ing here stated entered into force on 1 Janu ary 2001 , cf. Act no. 1258 of20 Decemb er 2000.