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PART V PATENT FILES AND PATENT REGISTER

Chapter 1 File

89. Contents

(1) The Institute shall keep a file on every patent application and every patent containing information on the course taken by the examination procedure and on the amendments affecting the existence of the patent and the right to the patent.

(2) Any person who includes a probative document among the documents and states that the said document discloses manufacturing or business secrets may request that it be filed separately. The existence of such documents shall be mentioned in the file.

90. Inspection of Documents

(1) Before the publication of a patent application, in the prior examination procedure, or before the grant of a patent, in the procedure without prior examination, the following persons shall be authorized to inspect the file on payment of a fee:

(a) the applicant and his agent;
(b) persons who are in a position to prove that the applicant has alleged violation by them of the rights deriving from his patent application or that he has warned them against such violation;
(c) third parties who are in a position to prove that the applicant or his agent has consented thereto.

(2) These persons shall also be authorized to consult rejected or withdrawn patent applications.

(3) After the stage referred to in subsection (1), the file may be inspected by any person on payment of a fee.

(4) Any person who, by virtue of subsections (1) or (2), intends to inspect the file shall inform the Institute in advance and in writing of the date on which he intends to do so.

(5) If the inspection of probative documents filed separately (Article 89(2)) is requested, the Institute shall take a decision after having heard the patent applicant or patent owner. In opposition procedures and appeal procedures the chairman of the opposition division or of the Board of Appeal shall take the decision.

(6) Where the public interest so requires, the Federal Department of Justice and Police may authorize the Institute to allow directors of divisions of the Federal Administration to inspect the file.

(7) On request and on payment of a fee, the documents to be inspected shall be issued in the form of copies.

(8) The general provisions on mutual judicial assistance shall be reserved.

91. Information on Patent Applications

(1) Against payment of a fee, the Institute shall give to third parties, without any guarantee as to its completeness, the following information on pending patent applications:

(a) name and address of the applicant and of his agent;
(b) name and domicile of the inventor, except where the inventor has elected not to be mentioned;
(c) number of the patent application;
(d) filing date;
(e) information concerning priority and immunity derived from an exhibition;
(f) title of the invention;
(g) provisional classification;
(h) whether or not the application is subject to prior examination;
(i) requests for postponement of the examination as to substance, of publication of the application or of grant of the patent;
(k) date of publication and number of the application specification;
(l) opposition procedure in progress;
(m) rights granted, likewise restrictions to the right of disposal, imposed by courts or authorities responsible for measures of distraint.

(2) The Institute shall provide this information if the name of the applicant or the number of the patent application is indicated. As far as possible, the Institute shall also base the information provided on other indications.

92. Keeping of Documents

The Institute shall keep the original or a copy of the documents relating to withdrawn or rejected patent applications for five years from the withdrawal or rejection, but for at least 10 years from the date of filing.

Chapter 2 Patent Register

93. Keeping of the Register

(1) The Institute shall keep a register of patents granted.

(2) Published patent applications shall be provisionally registered therein. Once the patent has been granted, the provisional entries shall be regarded as final.

94. Contents of the Register

(1) Patents shall be finally entered in the Register with the following particulars:

(a) number of the patent;
(b) classification symbols;
(c) title of the invention;
(d) date of filing;
(e) number of the patent application;
(f) date of publication of the patent application in the prior examination procedure;
(g) date of grant of the patent;
(h) priorities and immunities derived from exhibitions;
(i) name and first name or corporate name or business style, domicile or headquarters and address of the owner of the patent;
(k) name, domicile or headquarters and address of the agent;
(l) name and domicile of the inventor, except where the inventor has elected not to be mentioned;
(m) rights granted, likewise restrictions on the right of disposal ordered by the courts or by authorities responsible for measures of distraint;
(n) changes affecting the existence of the patent or of the right to the patent;
(o) changes of domicile or headquarters of the owner of the patent;
(p) changes of agent, or of the domicile or headquarters of the agent.

(2) Published patent applications shall be provisionally entered with the corresponding indications under the anticipated patent number.

(3) The Institute may also enter, provisionally or finally, such other indications as it considers useful.

95. Consultation. Extracts from the Register

(1) Any person shall be allowed to consult the Patent Register against payment of a fee.

(2) On request and on payment of a fee, the Institute shall make extracts from the Patent Register.

Chapter 3 Modifications

SECTION 1 MODIFICATIONS AFFECTING THE EXISTENCE OF THE PATENT

Partial Renunciation

96. a. Form

(1) The declaration of partial renunciation of a patent (Article 24 of the Law) shall be filed in writing and in two copies.

(2) It shall be unconditional.

(3) It shall not be deemed to have been filed until the fee invoiced to that end by the Institute has been paid.

97. b. Contents

(1) The declaration of partial renunciation shall not give rise to any doubt as to the legal scope of the claims; Articles 1, 1a, 2, 51, 52 and 55 of the Law shall also govern the rearrangement of the claim.

(2) The description, drawings and abstract may not be modified. Partial renunciation nevertheless includes a declaration of the following kind:

Such parts of the description and drawings as are incompatible with the rearranged claims are to be regarded as deleted.

(3) If the declaration of partial renunciation is not in conformity with the requirements, the Institute shall allow the owner of the patent a period in which to remedy the defect. If the defect is remedied only in part, the Institute may, if it sees fit, make other notifications.

(4) Where partial renunciation relates to a patent granted according to the prior examination procedure, the subject matter of the new claim shall not give rise to another examination of its patentability in relation to the state of the art.

98. c. Registration and Publication

(1) If the declaration of partial renunciation is in conformity with requirements, it shall be registered.

(2) The Institute shall publish it and attach it to the patent specification; a new patent document shall be issued to the owner of the patent.

(3) At the same time, the Institute shall allow the owner of the patent a period of three months in which to apply for the constitution of new patents (Article 25 of the Law).

99. Limitation by the Court

Article 98 shall apply mutatis mutandis when the patent has been limited by the court (Article 27 or 30 of the Law).

Constitution of New Patents

100. a. Request

The provisions governing patent applications shall apply to the request for the constitution of a new patent (Article 25, 27(3) or 30(2) of the Law); Articles 101 and 102 are reserved.

101. b. Claims

(1) For each new patent to be constituted under Article 100, at least one new claim shall be made within the limits of the claims deleted from the original patent, account being taken of Article 24 of the Law.

(2) If the original patent was granted according to the prior examination procedure, the subject matter of the new claims shall not give rise to a new examination of patentability in relation to the state of the art.

102. c. Description

(1) With regard to the description and drawings, reference may be made to the specification of the original patent; a statement of the following kind shall be added:
Such parts of the descriptions and drawings appearing in patent specification No. ... as are incompatible with the claims of this patent are to be regarded as deleted.

(2) If the reference provided for in subsection (1) gives rise to doubt as to the legal scope of the patent, the parts of the specification of the original patent that are necessary for the understanding of the claim of the new patent shall be reproduced in an appropriate form.

SECTION 2 MODIFICATIONS AFFECTING THE RIGHT TO THE GRANT OF A PATENT AND THE RIGHT TO THE PATENT; CHANGES OF AGENT

103. Partial Allowance of an Action for Assignment

(1) If the court has ordered the assignment of a patent application with the elimination of certain claims (Article 30 of the Law), the applicant against whom this ruling is made may, with the eliminated claims, make one or more patent applications. Their filing date shall be that of the assigned application, and in other respects they shall be treated as divisional applications (Article 57 of the Law).

(2) If the court has ordered the assignment of a patent with the elimination of certain claims (Article 30 of the Law), the owner of the patent to which the said ruling applies may, with the eliminated claims request the constitution of one or more new patents (Articles 100 to 102).

(3) If it has the final judgment on the assignment in its possession, the Institute shall allow the patent applicant or owner against whom the ruling has been made a time limit for filing new patent applications or a request for the constitution of new patents.

104. Mention in the File

(1) Before the publication of a patent application, in the prior examination procedure, or the grant of a patent, in the procedure without prior examination, the following shall be mentioned in the file:

(a) changes of applicant;
(b) changes of corporate name or business style;
(c) other changes such as changes of agent, the grant of right and restrictions on the right of disposal ordered by the courts or by the authorities responsible for measures of distraint.

(2) Article 105(2) to (6) shall apply mutatis mutandis.

(3) The party acquiring a patent application shall take over the application in the state in which it was at the time the probative document reached the Institute.

105. Provisional or Final Recording in the Patent Register

(1) The following shall be provisionally or finally entered in the Patent Register:

(a) changes affecting the right to the grant of the patent that occur after publication of the patent application in the prior examination procedure;
(b) changes affecting the right to the patent;
(c) changes of corporate name or business style;
(d) other modifications, such as changes of agent, the grant of rights and restrictions to the right of disposal ordered by the courts or by authorities responsible for measures of distraint.

(2) All amendments shall be certified by a written declaration by the previous applicant or owner or by any other probative document; Articles 106 and 107 shall remain unaffected. Probative documents shall be incorporated in the file.

(2bis) The Institute may require with respect to all amendments, where circumstances necessitate, that the signature of the applicant or of the owner be legalized or that other means of proof, such as an extract from the trade register, be submitted.

(3) Insofar as an exclusive license is provisionally or finally entered in the Register, no other license that is incompatible with it shall be either provisionally or finally entered in respect of the same patent.

(4) A sublicense shall be provisionally or finally entered if it is certified by a written declaration of the licensee who has been provisionally or finally entered, or by another probative document that is adequate. In other respects, the right of the licensee to grant sublicenses shall be required to be established.

(5) The request for provisional or final entry of an amendment is not deemed submitted until the fee invoiced to that end by the Institute has been paid. Where the simultaneous registration of more than one amendment is required in respect of the same patent, one single fee shall become due.

(6) Provisional or final registration shall be effected without cost in respect of changes that are based on an executory judgment or on an award resulting from a measure of distraint, and also in respect of restrictions on the right of disposal ordered by the courts or by the authorities responsible for measures of distraint.

106. Cancellation of Third-Party Rights

At the request of the patent applicant or owner, the Institute shall cancel rights in favor of a third party, mentioned in the file or entered provisionally or finally in the patent register, if, at the same time, an express declaration of renunciation on the part of the third party or another probative document that is adequate is submitted and the fee invoiced to that end by the Institute is paid. Article 105(2bis) shall remain unaffected.

107. Changes of Agent

(1) Changes of agent shall be mentioned in the file or provisionally or finally entered in the Patent Register on submission of the power of attorney in favor of the new agent.

(2) The appointment of a new agent shall for the Institute constitute revocation of the power of attorney in favor of the previous one.

(3) The first appointment of an agent and the revocation of agents already appointed shall be exempt from fees.

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