Translation from Danish of "Bekendtgørelse nr. 892 af
21. september 2009: Bekendtgørelse om Ankenævnet for patenter
Order No. 892 of 21 September 2009
Order on the Board of Appeal for Patents and
Pursuant to section 7 (2) and (4) of the Patents Act, cf.
Consolidated Act No. 91 of 28 January 2009, and section 17 (1)
and (2) of the Protection of the Topographies of Semiconductor
Products Act No. 778 of 9 December 1987 it is laid down that:
Powers of the Board of Appeal
The Board of Appeal shall consider appeals from decisions made
by the Patent and Trademark Office. An appeal may relate to:
(i) patents, cf. sections 25 and 67 of the Patents Act,
(ii) supplementary protection certificates, cf. section 91 of
the Patents Act,
(iii) utility models, cf. section 25 of the Utility Models
(iv) designs, cf. section 22 of the Designs Act No. 251
(v) designs, cf. section 34 of the Designs Act No. 1259,
(vi) trade marks, cf. section 46 of the Trade Marks Act,
(vii) collective marks, cf. Section 2 of the Collective Marks
(viii) topographies of semiconductor products, cf. section 17
of the Protection of the Topographies of Semiconductor Products
(ix) requests for inspection of files relating to paragraphs
Composition and organisation
(1) The Board of Appeal shall consist of not more than
18 members appointed by the Minister for Economics and Business
Affairs. Appointments shall be for a term not exceeding 5 years.
At least two of the members, including the chairman and
vice-chairman, shall meet the general requirements for being
appointed High Court judges, while the other members shall
jointly possess an optimum expert knowledge of patents, utility
models, designs, trade marks and topographies of semiconductor
products. The members shall be graduates from the Technical
University of Denmark or another institute of higher education or
have acquired the necessary expertise in another manner.
(2) Members of the Board of Appeal shall be eligible
(1) The chairman of the Board of Appeal shall ensure
that the Board conducts its work in an appropriate manner and may
lay down further rules governing the activities of the Board. In
the absence of the chairman, the vice-chairman shall deputise.
The chairman shall be assisted by a Secretariat.
(2) In the absence of the chairman, the vice-chairman
shall exercise the powers vested in the chairman under this
(1) The chairman may convene a joint meeting of all
members of the Board of Appeal to provide information on and to
discuss the administrative affairs of the Board and other issues
of importance to the activities of the Board.
(2) A minority group of three members may convene a
joint meeting of all members with a view to making a binding
decision on issues relating to the activities of the Board of
Appeal. The joint meeting shall constitute a quorum if attended
by at least half of the Board members. Decisions shall be taken
by a simple majority. In the event of parity of votes, the vote
of the chairman shall be decisive.
The chair of the Board of Appeal shall decide whether and to
what extent the decisions of the Board shall be published.
(1) The Ministry for Economics and Business Affairs
shall place the services of a Secretariat at the disposal of the
Board of Appeal.
(2) Experts may be made available to the Secretariat as
The Secretariat shall assist the Board of Appeal in its work,
including the regular updating of the Internet homepage of the
Board and the preparation of its annual report.
Preparation of the appeal proceedings
(1) An appeal shall be filed with the Board of Appeal
by the appellant or his agent.
(2) The appeal shall state:
(i) the decision appealed from,
(ii) the claim of the appellant and
(ii) the allegations and evidence of the appellant.
(3) If the appellant intends to submit evidence not
previously submitted, such evidence shall be indicated in the
appeal. If the appellant wishes to make further submissions, a
request to that effect shall be made in the appeal. The Board of
Appeal shall fix a time limit therefor.
(4) The appeal shall be accompanied by a fee for appeal
of DKK 8,000 for appeals in respect of patents, cf. section 1(i),
DKK 5,000 for appeals in respect of utility models, cf. section 1
(iii), and DKK 4,000 for appeals in respect of the other rights
referred to in section 1. If payment is not made before the
expiry of the time limit for the appeal, the appeal shall be
rejected as inadmissible.
(5) In the circumstances referred to in section 27 in
which a request is made for the reopening of an appeal case, an
appeal fee of DKK 4,000 shall be paid.
(6) No fee shall be payable for an appeal against a
refusal of a request for the inspection of files.
(7) If the appeal is rejected as inadmissible, the fee
shall be reimbursed. If the appeal is allowable, the Board of
Appeal may decide to reimburse the fee wholly or in part.
(8) If the Board of Appeal so requests, the appeal
shall be accompanied by a power of attorney for the agent, if
(1) If the appellant is opposed by another party, the
Board of Appeal shall inform the latter about the appeal.
(2) If the appeal is not rejected as inadmissible, a
copy of the appeal and the accompanying annexes and other
submissions which the appellant may have made shall be forwarded
to the opposite party, who shall be given the opportunity within
a time limit to be fixed by the Board of Appeal to file
observations on the appeal. The provisions of section 8 (1) to
(3) shall apply mutatis mutandis.
(3) The respondent shall forward his written
submissions and annexes thereto to the appellant and to the Board
(1) If any party, except in the circumstances referred
to in sections 8 and 9, wishes a respite to make further
submissions in the case, he shall file a request to that effect
in writing without delay. Such a request may be accommodated only
to the extent it is deemed necessary in view of the nature of the
(2) If additional submissions are made, they shall be
forwarded to the other parties to the case.
The preparation of the proceedings and the deliberation by the
Board of Appeal shall be in writing. As an exception, the
chairman may in specific cases decide oral proceedings to take
place, cf. Part 5.
The Board of Appeal may ask for observations from the Patent
and Trademark Office, the parties to the appeal or special
experts. The parties shall be given the opportunity to comment on
such observations within a time limit to be fixed by the Board.
(1) When the preparation of the proceedings is
concluded, the parties to the appeal shall be given the
opportunity within a time limit to be fixed by the Board of
Appeal to indicate whether they wish oral proceedings to take
place or to uphold an earlier request to that effect. A party
failing to respond by the expiry of the fixed time limit shall be
deemed to have waived oral proceedings.
(2) When the Board of Appeal has declared the exchange
of written communications to be concluded, material submitted
subsequently shall not be included in the examination of the
appeal by the Board unless expressly permitted by the chairman.
In the event that the chairman permits new material to be
included, it shall be sent to the other parties to the appeal.
If the appellant wishes to withdraw his appeal, the chairman
shall decide whether the withdrawal may be allowed. The
appellant, the other parties to the appeal, and the Patent and
Trademark Office shall be notified thereof.
(1). Oral proceedings shall be convened in writing at
no less than six weeks notice. Before oral proceedings take
place, the Secretariat of Board of Appeal shall arrange for the
time, place and agenda to be published on the Boards
(2) Not later than two weeks before oral proceedings
are due to take place, the parties shall forward a statement of
claims to the Secretariat of the Board of Appeal with a copy to
any opposite party. The statement of claims shall contain the
partys claims and allegations, a list of the documents,
which the party intends to submit in support thereof, and any
evidence, which is intended to be, submitted during the appeal
(3) In the event that a party during oral proceedings
wishes to discuss or to substantiate individual annexes to the
appeal, copies of such annexes or extracts thereof shall be
enclosed with the statement of claims.
Oral proceedings shall be public. The chairman of the Board of
Appeal may, however, decide that proceedings shall be conducted
in camera if it is considered necessary in order to prevent the
disclosure of commercial secrets or if otherwise indicated by
If any party, witness or expert is not sufficiently familiar
with the Danish language, the services of an interpreter shall be
employed in the oral proceedings unless the chairman decides
otherwise. The chairman shall decide who shall bear the
(1) During the oral proceedings a party may not amend
his claim or submit new claims or evidence. If the Board of
Appeal finds it excusable that the amended claim or the new
allegations or evidence have not been submitted earlier, the
submission thereof shall be permitted as an exception. The same
shall apply if the Board of Appeal finds that the amended claim
may be considered included in the existing claim or simply
clarifies the latter.
(2) If the Board of Appeal permits a party to amend his
claim or to submit new allegations or new evidence, the Board may
of its own motion or upon request decide to postpone the appeal
(3) Witness statements shall not be permitted unless
the Board of Appeal exceptionally so permits.
(4) If the Board of Appeal during the oral proceedings
wishes to produce material or to include issues which may be
essential to the appeal and to which the parties have not
previously been introduced, the appeal proceedings shall be
postponed if so requested by any of the parties, and postponement
is not obviously unnecessary.
Deliberation and decision
(1) With due regard to the nature of the individual
case, the chairman shall decide which and how many of the members
of the Board of Appeal apart from the chairman shall participate
in the examination of and decision on the appeal, cf. however
subsections (2) and (3).
(2) In the examination of and decision on appeals from
decisions of the Patent and Trade Mark Office in respect of
patents, normally the chairman, one legal and three technical
expert members shall participate, the minimum participation being
the chairman and one technical expert member.
(3) In the examination of and decision on appeals from
other decisions, the minimum participation shall be the chairman
and one expert member, cf. however section 14.
A member may not participate in the examination of an appeal
if the member is disqualified under part 2 of the Public
If oral proceedings have taken place, no member who has not
participated at all stages of the proceedings shall participate
in the decision.
Following exchange of written communications, the Board of
Appeal shall decide on the appeal by approving the draft decision
formulated on the basis of the deliberation. If oral proceedings
take place, the decision shall be made by oral deliberation after
conclusion of the oral proceedings.
(1) Decisions shall be taken by a simple majority. In
the event of parity of votes, the vote of the chairman shall be
(2) If the decision requires a vote on more than one
issue, the members who were in the minority on one issue shall be
bound to participate in subsequent votes.
(1) The decision of the Board of Appeal shall be
formulated in writing and signed by the chairman.
(2) The decision shall state:
(i) the date of the decision
(ii) the names of the parties and their agents,
(iii) the claims and allegations of the parties,
(iv) the production of evidence and
(v) the grounds and conclusion.
(3) If the decision is not unanimous, it shall include
a statement of the minority opinion.
The Board of Appeal may correct errors appearing in the
decision if such errors are of a formal nature.
The decision of the Board of Appeal on the appeal shall be
forwarded to the parties involved. The decision shall, moreover,
be forwarded to the Patent and Trademark Office, which shall take
such steps as arise from the decision of the Board.
Reopening of the appeal
If so requested, the chairman may in exceptional cases decide
that an appeal case shall be reopened within two months of the
date of the decision of the Board of Appeal.
The rules of this Order shall apply to applications for
patents to be granted with a secret status to the extent that it
is compatible with the provisions relating to such applications.
Provisions as to entry into force
(1) This Order shall enter into force on 1 October
(2) Order No.735 of 27 August 2002 on the Board of
Appeal for Patents and Trademarks is repealed.
The Ministry for Economics and Business
21 September 2009
/ Katrine Winding