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Legislative Implementation of Flexibilities - Denmark

Title:Sections 8 (2), 8a, 21 (2) (ii) and 52 (1) (ii) of the consolidated Patents Act No. 91 of 28/01/2009 and Rule 3 (4) and (5) of the Order No. 93 of 29/01/2009
Field of IP:Patents
Type of flexibility:Disclosure related flexibilities
Summary table:PDF

Provisions of Law

8.-(2) The application shall contain a description of the invention, including drawings where necessary, and a precise statement of the matter for which protection by the patent is sought (claims). The fact that the invention relates to chemical compound shall not imply that a specific use shall be indicated in the claim. The description shall be sufficiently clear to enable a person skilled in the art to carry out the invention. An invention which relates or involves the use of biological material shall, in the cases specified in section 8a, only be regarded as disclosed in a sufficiently clear manner if also the requirements of section 8a are fulfilled.

8a.-(1) If carrying out the invention involves the use of biological material which is not available to the public or which cannot be described in the documents of the application in such a manner as to enable a person skilled in the art to carry out the invention, a sample of the biological material shall be deposited not later than on the date of filing of the application. The sample shall thereafter always be deposited in such manner that any person entitled to the furnishing of a sample may have the sample furnished in Denmark.

The Minister of Economic and Business Affairs shall lay down rules as to where deposits may be made.

(2) If a deposited sample ceases to be viable, or if for any other reason a sample cannot be furnished, the sample shall be replace by a new sample of the same biological material within the time limit prescribed and in accordance with the rules laid down by the Minister of Economic and Business Affairs.

The new deposit shall be deemed to have been made already on the date of the previous deposit.

21-(2) An opposition may only be based on the grounds that the patent has been granted irrespective of the fact that

(ii) it relates to an invention which is not disclosed in a manner sufficiently clear to enable a person skilled in the art to carry out the invention on the basis of the description,

52.-(1) A patent may be revoked by a court decision if

(ii) it relates to an invention which is not disclosed in a manner sufficiently clear to enable a person skilled in the art to carry out the invention on the basis of the description,

Order of 29/01/2009

3.-(4) If an invention relates to or makes use of a biological material of vegetable or animal origin, the patent application shall contain information about the geographical origin of the material if the applicant is aware thereof. If the applicant is not aware of the geographical origin of the material, that shall appear from the application. Lack of information about the geographical origin of the material or about the applicant's non-awareness thereof shall not affect the examination and other processing of the patent application or the validity of the rights conferred by the granted patent.

(5) If an invention relates to or makes use of a biological material of human origin, it shall appear from the patent application whether the person from whom the biological material originates has given his consent to the filing of the application. The information about consent shall not affect the examination and other processing of the patent application or the validity of the rights conferred by the granted patent.

5.-(4) Where part of the description seems to be missing from the application, or where the application refers to a drawing which seems to be missing, the Patent and Trademark Office shall invite the applicant to submit the missing part or drawing before the expiry of a time limit of two months from the notification thereof.

(5) Where a missing part of the description or a missing drawing is filed with the Office before the expiry of a time limit of two months calculated from the date on which one or more of the conditions pursuant to section 8b(1) of the Patents Act are fulfilled or from the forwarding of the invitation referred to in subsection 4 to the applicant, that part of the description or the drawing shall be included in the application and, subject to subsections 6 and 7, the date of filing shall then be the date on which the Patent and Trademark Office has received the said part of the description or the said drawing.

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