For the area of the patent law there was used, in the Czech Republic, before the year l99l, the term "inventorsi law", because the patent system in the Czech Republic was, after the year l951, suppressed in fact. The revival took place by passing the Act No. 527/90 Coll. on Inventions, Industrial Designs and Rationalization Improvements, which became effective on January l, l99l.
In comparison with previous legal arrangements, the concept of the term invention is not legally defined. The law, though, lays down legal preconditions of the patentability of the invention both material and procedural, and it is necessary to take into consideration even negative limitations of patentable inventions.
A patent may be granted onto the invention, as far as this invention complies with the following legal material preconditions laid down by the law:
The law lays down exactly what is not an invention:
- discoveries, scientific theories, mathematical methods
If the subject of the invention application complies with legal material preconditions, if the solution is not excluded from the protection and if the applicant pays the respective administration fee, the Industrial Property Office shall grant the patent to the applicant and issue him the respective Patent Deed. The contents of the patent law is determined by the Act as the effect of the invention, working against all third persons, and the scope of the invention is laid down by patent claims. The right to a patent has the inventor of the invention or his legal successor.
The law acknowledges even so called employeeis inventions, when the inventor formed an invention within fulfilling a task with respect to his employment or another similar relation. In such a case the right to the patent passes to the employer, if anything other, of course, is not laid down by a contract. The right to be the inventor of such an invention is not affected (as to further details, see the chapter Corporation Industrial Rights).
The owner has the exclusive right to utilize the invention, to provide his approval to other persons (to grant a licence) as to its utilization, or to transfer the patent onto them. Said effects, though, do not start at its granting, but only on the date when the announcement on granting the patent is published in the Bulletin of the Industrial Ownership Office. Who utilizes the invention without the approval of the owner, infringes exclusive rights of the owner, and said illegal activities result in unfavourable consequences. Pursuant to the law, the owner can claim especially that the infringement of the right may be forbidden and the consequences removed. If such an infringement caused a damage, the damaged person is entitled to be indemnified. In such a case there shall be indemnified not only the arisen damage, but the lost profits as well.
The invention utilization is reserved to the authorized person, legal or natural, viz. to the owner of the patent, which has the exclusive right to utilize the invention. The law, though, makes it possible, to a request of a third person that this patent monopoly may be broken through by means of a forced licence, granted by the Industrial Property Office. It concerns especially on abusing the patent monopoly by the fact that the owner does not utilizes the invention and does not want to give his approval for utilizing the invention to another person.
Pursuant to the law, the invention is utilized by that person, who/which, at his/its economic activity, produces, introduces in circulation, or uses the product which is the subject of the invention, or who/which uses the process which is the subject of the i nvention. If the patent has been granted for a production process, its effect is also related to products which were produced directly by means of this process. If a contrary is not proved, the identical products are supposed to be obtained (eventually produced) in accordance with the protected process.
Only a utilization at an economic activity is taken as a utilization of the invention. Any utilization for a private non-economic need in privacy is not a utilization of the invention.
The approval for utilizing the invention protected by a patent is provided in a written contract - viz. the licence contract. The licence contract becomes effective against third persons by the entry into the Patent Register (further see the chapter Licence Contract).
The same rules, as to the contract and the entry, are valid even for the patent transfer.
The patent is valid for 20 years from the filing date of the invention - provided that there are paid renewal fees. The patent becomes extinct by expiring its validity period, by no paying of the respective administration renewal fees in the determined terms, or by patent owneris abandoning. The patent also becomes extinct by cancelling, viz. in the case that the Industrial Ownership Office finds out ex post, that preconditions laid down by the law for granting the inventions have not been fulfilled. The cancellation of the patent is valid retrospectively, viz. from the date of its validity beginning.
Proceedings on granting the patent is started by filing the patent application at the Industrial Ownership Office. The filing date of the application is decisive for starting the priority - the priority right.
The Office performs a preliminary examination of the application, during which it inspects obligatory requisites of the application. The sense of the examination resides in removing formal faults which prevent the application from being made public and from excluding from further proceedings such applications of the invention, the subjects of which are evidently not patentable. During the preliminary examination there are examined only those preconditions where the comparison of the application subject of the invention with the state of art is not necessary.
After l8 months from the priority date, the Office makes the application of the invention public, viz. in such a way, that in the Bulletin there are published basic data of the application, and the application is made public for making it possible to look into it. The sense of making public resides in the inspection of the public as to the claimed exclusive rights. The application may be made public even sooner, if it is requested by the applicant. The application of the invention heving been made public, anybody may file comments to the patentability of its subject at the Office.
To the request of the applicant, or other persons, eventually by authority, the Office shall perform the complete examination, where it finds out, whether the application complies with the preconditions, laid down by the law, for granting the patent. The application for performing the complete examination must be filed not later than 36 months from filing the application of the invention. The examination of the invention application is divided in two parts: preliminary examination and complete examination. Said parts may be merged into one part in case that the applicant files the request for the complete examination at filing the application of the invention. The existence of the complete examination has the reason that the complete examination, which is exacting both as to time and financially, may be performed only for those applications of inventions, where a real assumption exists that the inventions will be realized in an economic sphere.
Sources of law
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