Hans Christian THOMSEN

High Court Judge/President, Board of Appeal for Patents and Trademarks

Recent developments in Danish patent law and case law

UPC/UP

Denmark has in June 2014 ratified the Unified Patent Court Agreement. Briefly the process has been as outlined below:

• Following the adoption of the Regulation on the Unitary Patent in December 2012 and the signing of the Agreement on the Unified Patent Court in February 2013 the Danish government aimed at ratifying the UPC agreement as soon as possible, having due regard to the required Danish parliamentary process.
• The Danish draft bill was presented to parliament in October 2013. Since ratification would result in a transfer of sovereignty from Danish courts to the UPC, the Danish Constitution required a majority of 5/6 in parliament. Such a majority was not achieved at the parliamentary vote in April 2014 and therefore a referendum was required. On the 25 May 2014 the Danes voted 'Yes', and in June 2014 Denmark became the fifth country to ratify the UPC agreement.
• The relevant Act is: "Lov om en fælles patentdomstol m.v." (Nr. 551 af 2. juni 2014). (Translated title: "Act on a Unified Patent Court etc."). In the Act it is stated that the UPC agreement applies in Denmark and specified powers are given to the UPC. Furthermore it contains some adjustments to the Danish Code of Civil Procedure. In the Danish Patent Act it is stated that a European patent is deemed not to have taken effect as a national patent in Denmark, if the unitary effect of that patent has been registered. Any fees paid to the Danish Patent and Trademark Office will be refunded in such situations.

The Danish Order on Patents and Supplementary Protection Certificates

The Danish Order on Patents and Supplementary Protection Certificates has been amended in a number of different respects. The most important amendments are the following:

• Changes to the processing of oppositions and requests for administrative revocations. The opponent or requester is now clearly allowed to respond to a patent holder's proposed amended text following the Danish Patent Office's opinion to maintain the patent in amended form. In short, the opponent or requester is heard about an amended text before the patent office decides to maintain the patent. This change has been introduced to allow for better conformity with the European Patent Convention.
• After the Danish Patent Office's first search and examination of an application the applicant is now allowed to file new claims, provided they combine with the originally claimed invention in line with the European Patent Convention. This is a relaxation compared to previous legislation, where the filing of new claims was only allowed if within the scope of the first examination of the first filed claims.
• Amendments regarding the language of proceedings. Processing of patent applications, oppositions and administrative revocations in English has been possible for some years in Denmark. The new amendments clarify that only the patent office can require a translation of supporting documents, e.g. prior art, and only if deemed necessary.

Supplementary Protection Certificate (SPC)

In a recent decision from the Danish Board of Appeal concerning which date should be used as a basis when calculating the validity period of a supplementary protection certificate, the board established that this is the date of the decision to grant marketing authorisation.