Patents of Invention
– Consolidated Secret Patents Act of January 24, 2012.
– Consolidated Employees' Inventions Act of January 24, 2012.
– Act on Unitary Patent Court of June 2, 2014 (not yet in force).
– Consolidated Patents Act of January 29, 2019.
Membership in International Conventions
– Paris Convention for the Protection of Industrial Property, Stockholm Act.
– Convention Establishing the World Intellectual Property Organization (WIPO).
– Convention on Unification of Patent Laws.
– Strasbourg Agreement Concerning the International Patent Classification.
– Patent Cooperation Treaty (PCT), Chapters I and II.
– European Patent Convention (EPC), since January 1, 1990.
– Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.
– WTO’s TRIPS Agreement, since January 1, 1995.
– Patent Law Treaty, since April 28, 2005.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since December 29, 2006.
– Community Patent Convention (CPC). The CPC has not yet entered into force, but Denmark is now able to deposit its instrument of ratification of the CPC.
– London Agreement on the application of Article 65 EPC (in force since May 1, 2008).
Applicant: inventor (one or more persons) or his legal successor (one or more persons or companies). A corporate body cannot figure as inventor.
Applicants not living in the country: may appoint a representative domiciled in the European Economic Area.
Protection of foreigners: foreigners enjoy the same rights as Danish citizens.
Naming of inventor(s): inventor’s name is published.
Notion of the invention: novel products, methods and uses showing inventive step and usefulness in industry. An explanation is required showing how the asserted useful effect justifying the grant of the patent is actually obtained.
Novelty: any prior disclosure of any sort anywhere invalidates novelty. Also the files of an older patent or utility model application for Denmark, which in due time becomes publicly available (eighteen (or fifteen -UM application) months after filing date or priority date) are a novelty bar to a more recent application.
Pharmaceuticals: pharmaceutical substances may be protected.
Exceptions to protection (unpatentable inventions): like EPC: (1) discoveries, scientific theories and mathematical methods; (2) aesthetic creations; (3) schemes, rules and methods for performing mental acts, playing games or doing business; (4) computer programs as such; (5) presentations of information; (6) methods for the treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body; however, products, including substances and compositions, for use in any such method may be patentable. Furthermore, the following are unpatentable: (7) the human body, at the various stages of its formation and development, and the simple discovery of its elements, including the sequence or partial sequence of a gene; however, an element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may be patentable; (8) inventions the exploitation of which would be contrary to morality or public order. (Processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes, and processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and animals resulting from such processes are considered to be contrary to morality or public order); (9) plant and animal varieties and essentially biological processes for the production of plants and animals; however, microbiological processes and the products thereof can be patented. Plant varieties can be protected under the Plant Variety Protection Act.
Kind of protection: national patents, European patents.
Secret patents: provided for in the case of inventions vital to national defense.
Convention priorities: any number. Partial priorities recognized. To be claimed within three months after filing application. Priority document must be filed within sixteen months from priority date. Acceptance of priority claim is independent of the government’s recognition of the country concerned. The so-called six-month “exhibition priority” merely means that the disclosure of an invention at an official or officially recognized international exhibition does not prevent the rightful owner of the invention from validly filing an application within six months.
Territory covered: Denmark, Faroe Islands (not EPC) and Greenland (not EPC).
Filing requirements for an application (to be sent to resident agent):
1. Power of attorney (only upon request);
2. Specification and abstract for translation (claims exceeding 10 claims are subject to an additional fee); translation of the claims, specification and abstract may however be postponed until the time of granting, and at grant only translation of the claims is obligatory;
3. Drawings, 1 + 1 for the agent, size exclusively 21 x 29.7 cm (A4), on white paper, clear black lines;
4. Assignment, if any, may be filed later (no legalization required);
5. Priority document (certified copy) must be filed within sixteen months from priority date.
Minimum requirements on filing date: last minute filing possible on the mere indication of: country, filing date and filing number of equivalent foreign application.
Electronic filing: accepted by means of facsimile and e-mail.
Electronic signatures: are accepted for all documents.
PCT applications: time limit for entering national Danish phase of PCT applications: under both Chapters I and II: 31 months for the whole Danish territory. Agent should receive order at least one month earlier. An extension of two months for filing a translation into Danish or English is obtainable.
European patent validation requirements: translation of the claims into Danish is required, within a non-extendible term of three months after the date on which the mention of the grant of the European patent is published in the European Patent Bulletin. Annotations to drawings and photographs must be in English or Danish.
For a change of name or address: no documents are required for the recordal of a change of name or address. If there is any doubt about the correctness of the name change, documentation may be requested (no legalization).
Examination: as to form, including unity of invention, novelty and inventive step. In the case of a lack of unity restriction or division is required.
Extent of examination: standard PCT search covering the PCT minimum standard.
Shelving: if official action is not responded to within the term granted the application is shelved; reinstatement is possible within four months thereafter.
Parallel foreign applications: applicant should inform the Danish Patent Office of the result of novelty search and patentability evaluation in foreign countries. standard PCT search covering the PCT minimum standard.
Amendment of application: widening (within the disclosure) or restriction of a claim and any clarification possible until mention of grant. After mention of grant a claim cannot be widened.
Alterations: in the case of the introduction of new matter. Such new matter may be made the subject of a divisional application having as its effective filing date the date of filing of the new disclosure.
Interference: not provided for. First come (i.e. filing or priority date), first served.
The specification: should comprise (1) (a) a mention of the known art, (b) a statement of the purpose of the invention, (c) a reference to the main claim, and (d) an explanation as to why the measures of the claim actually do bring about the desired effect; (2) an explanation of how each individual sub-claim, if any, enhances the effect brought about by the measure of the main claim.
Claims: acceptable types of claims are: product, method, use. Product and method claims should, if possible, be of the “characterized by” type. The main claim should comprise (a) a statement of the known art, (b) normally the words “characterized by”, and (c) the measures according to the invention (“the characterizing clause”). Any sub-claim should refer back to some preceding claim(s).
Prior user: see in Section 6 below “Rights of prior user“.
Disputes about ownership: settled by the courts. In the meantime, the prosecution of the application may be postponed.
Division: up to the date of grant.
Application kept secret: until eighteen months have lapsed from the first filing date (priority date). If withdrawn or rejected within eighteen months the application is not made publicly accessible. The eighteen-month period may be shortened on request.
Appeal: applicant may appeal against a rejection, to the Appeal Board. An appeal against a rejection decision of the Appeal Board may be made at the courts within a term of two months.
Corrections: misleading errors may be corrected.
Publication – registration: files publicly accessible: eighteen months after first filing date (priority date) (exception: applications withdrawn or shelved or rejected and not in appeal).
Only translation of the claims is obligatory, if the specification is in English.
Delivery of Letters Patent: some months after the decision to grant in electronic format only.
Beginning of protection: filing date.
Duration: twenty years from filing date.
Annuities – latest term for payment: annuities are to be paid by the last day of the filing month. However, the 1st and 2nd annuities are only paid together with the 3rd annuity.
Annuity grace period: six months, fine 20%. Payment in advance: maximum three months.
Marking of patented goods: not compulsory. In the case of allegation of patent or patent application further information must be given upon request and without delay.
Text of marking: “Dansk patent nr. …”, or “Dansk patentansøgning nr. …” (ansøgning = application).
Amendment of issued patents: misleading errors may be corrected.
Assignment: possible at any time. The registration of assignment is not compulsory but advisable (the patentee as according to the Patents Register may always be sued). Assignment document and power necessary for registration.
License for exploitation (form, registration): registration not compulsory but possible. No specific formal requirements to documentation. Licensee cannot assign his license unless explicitly stated in the license contract. Otherwise the Patent Act does not regulate questions between licensor and licensee (e.g. who may sue an infringer?).
Working – compulsory license: if a patent is not worked within three years from granting and four years from filing, a third party may obtain a compulsory license.
Restoration of lapsed patents: exceptionally possible, under highly excusable circumstances, within further one year after the patent has lapsed due to non-payment in the grace period.
Patent right: a right of the patentee to exclude others from using the invention commercially. A patent to a method covers the products obtained according to the method.
Supplementary Protection Certificates (SPCs): are obtainable for pharmaceuticals, extending the duration of the patent up to five years. The same applies for agrochemicals. Extension of validity period for SPCs: is obtainable for pharmaceuticals for paediatric use, extending the duration by six months. Applications for a supplementary protection certificate: must be filed within six months from the date on which the first authorization to market the product was granted in Denmark (or six months from the grant of the patent in Denmark, in case the authorization to market is granted before the grant of the patent). The patentee only is authorized to file an application for a SPC. So the applicant should appear in The Danish Patents Register as the owner of the relevant patent, for which extension is applied. Applications for extension of validity period for SPCs: must be filed two years before the expiry of the basic SPC. Applicants not living in Denmark: must appoint a representative in Denmark. Filing requirements: power, applicant’s name and address, the relevant patent number and title, the number and date of the first authorization to market the product in Denmark, and -if this is not the first authorization to market in the EU- the date and number of the first authorization to market the product in the EU, together with a copy of the official publication of this last authorization, an identification of the product for which this authorization has been granted (for instance the chemical formula or the name according to IUPAC), and the legal provision, according to which the last mentioned authorization to market has been granted. Finally, whether or not corresponding applications for SPC have been filed in other EU member States, together with a mentioning of the relevant authorities, if any.
A European patent granted for an application designating Denmark will have the same effect in Denmark as a national Danish patent, provided that a Danish translation of the claims, together with the description in English (or translated into Danish or English if the procedure language is not English), is filed with the Danish Patent Office within three months from the publication of the grant.
Enhanced penalty in the case of abusive steps in relation to the granted right. In the case of alleged infringement in the application period, a translation of the claims should always be provided.
Modification of Protection after Registration
Opposition to patent granted: must be filed within nine months from the publication of the mention of grant.
Opposition reasons: the invention is lacking novelty, inventive step; the invention is not described so clearly as to enable a man skilled in the art to carry it out; the patent has been amended to extend beyond the content of the application as filed.
Procedure: the Patent Office makes its decision on consideration of applicant’s and opposing party’s written argumentation.
Appeal: the parties may appeal against a decision ruling against them to the Board of Appeal (see in Section 4. above “Appeal“).
Administrative reexamination of a granted patent is possible. It may be applied for in the whole lifetime of the patent as well as after expiry, except during the opposition period or when an opposition case is still pending.
Rights of prior user: those who worked an invention (or had made substantial preparation therefore) in Denmark prior to its application date (or priority date) may continue that working and may assign such right together with their enterprise.
Compulsory licenses: compulsory licenses may be granted under special circumstances, e.g. to the owner of another patent who cannot work his patent without infringing an earlier patent.
Expropriation: possible in special cases of public interest.
Nullification of granted patents: through a lawsuit at any time. Reasons: better claim to the invention, lack of novelty and inventive step.
Infringement – penalties: in good faith or negligence: remuneration and damages according to the court’s evaluation. In bad faith: remuneration, damages and fine; in the case of aggravating circumstances: imprisonment. Prescription according to the normal rules (mostly five years). However, claims for damages are not prescribed within one year after the grant of the patent. Infringing articles and accessories for the infringement may be subject to destruction on the decision of the court. Retail purchaser in good faith cannot be prosecuted. Special exceptions in the patentee’s rights, as far as temporarily transportation means in Denmark are concerned.
Legal sanctions regarding infringement of patent application (if it matures later on into patent): – made publicly accessible: damages; – when granted: remuneration and damages.