In brief: patent prosecution in Denmark

Scope and ownership of patents

Can a patent be obtained to cover any type of invention, including software, business methods and medical procedures?

Generally, any invention involving a technical feature can be patented (if it is also new and inventive). However, some subject matters and activities are not regarded as inventions and are therefore not patentable.

Software is covered by the exception in the Patent Act, section 1(2)(3), and cannot be patented. Nonetheless, software in the form of a procedure practised through a data network might be patentable. Business methods are covered by the exception in the Patent Act, section 1(2)(1), and cannot be patented. Methods for treatment of the human or animal body by surgery, therapy or diagnostic methods are excluded from patentability by the Patent Act, section 1(3). The exception does not cover products for use in relation to the performance of such methods.

Who owns the patent on an invention made by a company employee, an independent contractor, multiple inventors or a joint venture? How is patent ownership officially recorded and transferred?

Under statutory law, an employer can require the transfer of rights in inventions made by company employees while the employee is in that case entitled to reasonable remuneration.

Ownership of inventions made by independent contractors remains with the independent contractor unless otherwise agreed between the parties.

If an invention has multiple inventors, it is jointly owned, which means that the inventors must generally agree on all dispositions regarding the patented invention. Assistance with creating the invention is not sufficient to create inventorship. It requires an intellectual contribution.

Ownership is recorded by the Danish Patent and Trademark Office in the Danish patent register. Both the inventor and owner of the invention must be mentioned by name in the patent application. Ownership can be transferred by agreement or assignment, and the transfer should be recorded in the Danish patent register.

Patent office proceedings

How long does it typically take, and how much does it typically cost, to obtain a patent?

The processing times and costs connected with filing a patent application depend on the technical nature of the invention. The first action (namely, the initial examination by the patent examiner on novelty, patentability and non-patentable claims) from the Patent and Trademark Office is usually issued within six months of filing the application. It is possible to request expedited processing, and in such cases, the first technical action will be issued within three months. The costs connected with a patent application start at 3,000 Danish kroner for 10 claims, which cover filing, search and examination. Additional claims cost 300 kroner per claim.

However, the majority of patents granted with effect in Denmark are European patents. To take effect in Denmark, a European patent must be validated in Denmark within three months of the date on which the patent was granted by the European Patent Office.

Are there any procedures to expedite patent prosecution?

The Danish Patent and Trademark Office participates in the Patent Prosecution Highway (PPH) programme. The PPH is an informal agreement between patent offices, which means that an applicant can request accelerated processing of a patent application at a patent office or later examination when a patent office of earlier examination has already found the corresponding patent claims to be patentable.

Currently, the Patent and Trademark Office participates in a global PPH programme and a bilateral PPH programme with the patent offices in several countries around the world.

What must be disclosed or described about the invention in a patent application? Are there any particular guidelines that should be followed or pitfalls to avoid in deciding what to include in the application?

The disclosure requirements in the Patent Act are the same as for European patent applications. First, a patent application must contain a description. The description is an explanation of the invention. Drawings of the invention can be included. Second, the application must describe the claims, namely the description of the technical features necessary to achieve the desired effect. Third, the application must contain an abstract on what technical problem the invention solves and how the invention can be used. Moreover, the name of the inventor and owner must be stated.

Applicants should be aware that patent applications may be written in Danish, Norwegian, Swedish or English. However, if the application is not in Danish, the Patent and Trademark Office will require that the application later be translated completely or partially into Danish.

Further, if an applicant intends to design-protect the invention, that application should be filed simultaneously with the patent application to prevent the patent application from blocking a later design protection (or vice versa).

The Danish Patent and Trademark Office has issued a step-by-step guide for patent applications, which can be found on the Office’s website (currently only available in Danish).

Must an inventor disclose prior art to the patent office examiner?

No. There are no rules in the Patent Act obliging an inventor to disclose prior art to the examiner at the Patent and Trademark Office.

May a patent applicant file one or more later applications to pursue additional claims to an invention disclosed in its earlier-filed application? If so, what are the applicable requirements or limitations?

An applicant is entitled to file a divisional patent application based on a pending patent application. The divisional patent application must concern an invention that is within the scope of the parent patent application as filed. Further, the patent application must subsequently be amended in order not to cover the technical features covered by the divisional patent.

Is it possible to appeal an adverse decision by the patent office in a court of law?

A final decision from the Patent and Trademark Office cannot be appealed in a court of law but can be appealed before the administrative appeal board, the Board of Appeal for Patents and Trademarks.

Appeals must be filed no later than two months after the date on which the Patents and Trademark Office notified the party concerned of its decision. The fee prescribed for an appeal must be paid within the same time limit. The appeal has a suspensive effect.

Appeal decisions of the Board of Appeal for Patents and Trademarks can be brought before the Maritime and Commercial High Court no later than two months after the date on which the Board of Appeal for Patents and Trademarks notified the party (or parties) concerned of its decision.

Does the patent office provide any mechanism for opposing the grant of a patent?

Before the granting of a patent, it is possible to file a third-party observation by submitting certain documents to the patent examiner. Third-party observations may concern all parts of the patentability of the patent application in question.

Does the patent office provide any mechanism for resolving priority disputes between different applicants for the same invention? What factors determine who has priority?

The patent priority rules are based on a first-to-file principle, which means that the first party to file an application with the Patent and Trademark Office achieves priority over later applications.

If two applicants file patent applications on the same invention on the same day, both applicants can be granted a patent on the invention. The Patent Act does not provide for how to deal with such an unlikely situation.

If the first applicant to file is not entitled to the invention (eg, because it is stolen), the first-to-file principle does not apply. If another party claims ownership of the invention, the Danish Patent and Trademark Office may urge the parties to file a lawsuit to settle the ownership dispute. While the case is being decided by the court, the patent application can be suspended until the court has ruled on the matter.

Does the patent office provide procedures for modifying, re-examining or revoking a patent? May a court amend the patent claims during a lawsuit?

Before a decision has been issued by the Patent and Trademark Office, the applicant can modify the patent application. During the course of the examination, the applicant can submit modifications to respond to any objections from the examiner. The scope of a patent application cannot be extended through modification.

Any person is entitled to file a request with the Patent and Trademark Office to the effect that a patent granted by the Patent and Trademark Office or granted with effect for Denmark be re-examined. Such a request for re-examination by persons other than the patent owner may, however, only be based on the grounds for revocation.

An opposition must be received by the Patent and Trademark Office within nine months of the notice of the grant of the patent. A request for re-examination may not be filed during the period allowed for opposition, or as long as an opposition remains to be finally decided upon. If a case before the court concerning a patent remains to be finally decided upon, a request for re-examination may not be filed concerning the patent in question.

The court may amend patent claims during a lawsuit.

How is the duration of patent protection determined?

The duration of a patent is 20 years from the filing date. If priority is claimed, the patent term can be up to 21 years from the priority date. Maintenance of the patent is subject to the payment of annual fees.

A supplementary protection certificate (SPC) may be granted for patents on approved medicinal products and plant protection products that are subject to regulatory approval. An SPC will extend the term of the protection by five years maximum.

Additionally, if paediatric studies are completed, a six-month extension of the SPC can be obtained.