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THE ROMANIAN GOVERNMENT THE MINISTRY OF LABOUR, FAMILY, SOCIAL PROTECTION AND ELDERLY AMPOSDRU
The European Social Fund POS DRU 2007-2013
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THE EUROPEAN SOCIAL FUND The Sectoral Operational Program Human Resources Development 2007 – 2013 Priority Axis 3 “INCREASING ADAPTABILITY OF WORKERS AND ENTERPRISES” Key Area of Intervention 3.3 “Development of partnerships and encouraging initiatives for social partners and civil society” Project title: “The Network of Competent Authorities for Professional Qualifications in Romania (IMI PQ NET Romania)” Beneficiary: the Ministry of National Education Contract no.: POSDRU/93/3.3/S/53132
Deliverable 30.1 „Certification and Recognition Guidelines for the Profession of Authorized Industrial Property Attorney” ETS dr. eng. Ionel POPA 1
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Ionel POPA
Certification and Recognition Guidelines for the Profession of Authorized Industrial Property Attorney
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TABLE OF CONTENTS
Introduction............................................................................... I Regulation status for the industrial property attorney profession in Romania and in the European Union ... 1.1 The legislation applicable to the industrial property attorney profession in Romania ….…..... 1.2 Conditions regarding the access to the industrial property attorney regulated profession in Romania 1.3 Landmarks for the industrial property attorney profession in the EU states ……………...……….. II Validation / certification procedures for the competences applied by the competent authorities in the countries where the industrial property attorney’s profession is being regulated ……………... Recognition processes for the qualifications achieved III in other EU Member States ………………………… 3.1 The procedure for the recognition of the industrial property attorney’s profession …………………. 3.2 The European citizens’ application to SOLVIT …. IV The practising of the industrial property attorney’s profession in Romania ……………………...………… 4.1 The deontological code applicable to the industrial property attorney’s profession …..………………. Conclusions ............................................................................... Bibliography ............................................................................. List of acronyms used ……………………………………….. Annexes ……………………………………………………….
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33 33 36 40 41 44 48 49 50
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Introduction These
“Certification
and
Recognition
Guidelines
for
information on the profession of industrial property attorney” account for one of the multiple results of the project “The Network of Competent Authorities for Professional Qualifications in Romania” IMI PQ NET Romania, drawn up for the information of the project social partners and of the large audience in relation to the way the industrial property attorney profession can be certified and recognized. The activity for the elaboration of these Guidelines contributes to the achieving of the general goal of the IMI PQ NET Romania project, consisting in the creation and consolidation of the Internal Market Information System (IMI) for the professional qualifications in Romania. The importance of the industrial property attorney profession is given by the fact that the progress and prosperity of humanity depends on its creativity in the technical and cultural fields, therefore the legal protection of the new creations encourages the investments and leads to other innovations and promotes the protection of intellectual property, which stimulates the economic growth by 5
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creating new jobs and fields of business for the declared goal of improving the quality of life. An effective and fair national industrial property system may be helpful for the exploitation of the intellectual property potential, which is a powerful instrument for economic growth and social and cultural progress. This system contributes to the establishment of a balance between the innovator's interests and the public interest, therefore creating an environment that is fit for creativity and invention for the overall benefit of the society. The intellectual property rights reward the human creativity and effort that is the engine of the humanity’s progress [1]. The following fields are subject to the national legislation on industrial property: invention patents (valid for 20 years); geographical marks and indications ; industrial drawings and models; semiconductor product topography; additional protection certificates (for plant protection products and medicines ); utility models; These “Certification and Recognition Guidelines for the industrial property attorney profession” refer to the industrial
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property attorney profession in Romania, providing also information on the European patent attorneys. Being convinced of the industrial property significance, we might say that the results of the industrial property attorney’s work significantly contributes to the nation’s economic, social and cultural development.
I. Regulation status for the industrial property attorney profession in Romania and in the European Union
1.1. The legislation applicable to the industrial property attorney profession in Romania The authorized industrial property attorneys are organized under the jurisdiction of the National Chamber of Industrial Property Attorneys (CNCPIR). The activity of the industrial property attorney consists in providing specialized support in the industrial property field and the representation of the interested Romanian or foreign individuals and companies before the State Office for Inventions and Trademarks, as well as before third parties (such as the Customs National Authority) during the regulated procedures. 7
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The “authorized industrial property attorney� profession, with Code 261918 in the Romanian Occupational Classification (COR), is being regulated in Romania under the supervision of two competent authorities, i.e.: the State Office for Inventions and Trademarks (OSIM) and the National Chamber of Industrial Property Attorneys (CNCPIR). Each competent authority has well defined duties regarding the access to the profession and the actual performance of the activity. The National Chamber of Industrial Property Counsellors, hereinafter referred to as the Chamber or CNCPIR, was established for the national and international representation and protection of the interests of the industrial property attorneys registered with the Chamber. The Chamber issues free practice authorizations for the practicing of the attorney profession in view of the registration with the fiscal administrations. The Chamber is a professional, non-governmental, apolitical organization without any lucrative purpose and with legal personality, which caries out its national public utility activity by self-financing and its members are industrial property attorneys, i.e. individuals. The Chamber is established and functions under the following laws: 8
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1. Government Ordinance no. 66/2000, republished under Article II in the Law no. 331/2006 for the amendment and completion of the Government Ordinance no. 66/2000 regarding the organization and practicing of the industrial property attorney profession, published in the Romanian Official Gazette, Part I no. 646 dated July 26th, 2006 and amended and completed according to the Law no. 437/27.06.2002. 2. Instructions no. 108 dated October 17th, 2002 for the application of the Government Ordinance no. 66/2000 regarding the organization and practicing of the industrial property attorney profession, issued by the State Office for Inventions and Trademarks and published in the Romanian Official Gazette nr. 826 dated November 15th, 2002; 3. National Chamber of Industrial Property Attorneys Bylaws1, with the amendments made during the January 2011 Conference; 4. Deontological Code2 for the industrial property attorney profession; 5. Government Urgency Ruling no. 49/20.05.2009 regarding the service providers’ freedom to settle down and their freedom to
1 2
http://www.patent-chamber.ro/word/statut_CNCPIR_2011.pdf http://www.patent-chamber.ro/word/cod_deontologic_2011.pdf 9
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provide services in Romania, Published in Part I of the Romanian Official Gazette no. 366/01.06.2009. The Chamber has legal personality since September 23rd, 2000, the date when the Government Urgency Ruling no. 66/2000 came into force and is seated in Bucharest. With strict reference to the authorized industrial property attorney profession, the Chamber has several duties out of which: a) to assure the practising of the industrial property attorney profession provided that the professional deontology conditions are met; b) to manage and to forward each month to the State Office for Inventions and Trademarks (OSIM) records on its members with an indication of the company or units where they work, if applicable; c) to defend the professional interests of its members; d) to nationally and internationally work with the bodies in the field; e) to participate and to be actively involved in the organization of the industrial property attorney exam. Although the Chamber analyzed the elaboration of an occupational standard for the authorized industrial property attorney profession, at this moment there is no such framework document regarding this profession. 10
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1.2. Conditions regarding the access to the industrial property attorney regulated profession in Romania The State Office for Inventions and Trademarks is the depository of the Industrial Property Attorney National Register that includes: a) the list of the industrial property attorneys established in Romania. b) the list of the industrial property attorneys temporarily providing industrial property services in Romania. The position of a industrial property attorney3 may be achieved following the promotion of an exam passed in front of the State Office for Inventions and Trademarks. According to the provisions laid down in the Romanian Government Ordinance no. 66 / 2000, regarding the organization and practicing of the industrial property attorney profession, the exam may be taken by the candidate who meets the following conditions in aggregate: 3
http://legeaz.net/og-66-2000-consilier-proprietate-industriala/art-5dobandirea-calitatii-de-consilier-in-proprietate-industriala 11
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a) he/she is a Romanian citizen, a citizen of a Member State of the European Union or of the European Economic Area; b) his/her domicile, residence or registered office is in Romania; c) he/she has full practicing capacity; d) he/she has technical, scientific or legal higher education; e) he/she practiced for at least 3 years in his/her basic professional training and of at least 3 years in the industrial property field (the two periods of time may totally or partially overlap); f) he/she has not been irrevocably sentenced for an action laid down in the criminal legislation, which would make him/her unworthy of being an industrial property attorney. The law lays down – both for the specialists4 in the industrial property field who were employees of OSIM for at least five years, and for the teaching staff proving to having taught the industrial property subject in accredited or authorized law schools for at least five years prior to the submission of the application for becoming a industrial property attorney – that the exam in front of the State Office for Inventions and Trademarks no longer has to be taken for
4
http://legeaz.net/og-66-2000-consilier-proprietate-industriala/art-6dobandirea-calitatii-de-consilier-in-proprietate-industriala 12
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the industrial property field they had carried out their activity in during the said five years. The objects of the industrial property right for which the exam laid down in Article 5 of the Ordinance 66/2000 is taken are the following: a) invention patents; b) geographical marks and indications; c) industrial drawings and models; d) semiconductor product topography. The exam is organized for each industrial property object; therefore, for the first case – the invention patents – it may consist in the following examinations: a) a theoretical examination including 10-15 questions regarding the knowledge for the application of the national and international legislation in the field of invention patents; b) a hands-on test for writing down the claims and the parts of an invention description, starting from the execution examples, including drawings – when applicable -, the technical stage indicated by the client and the filling out of a patent application form; c) a hands-on test including – as applicable: - writing down a response to a notice forwarded by a patent office regarding the existence of a patentable invention; or 13
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- writing down an objection or an application for the revocation of the decision to grant a patent issued by the State Office for Inventions and Trademarks; or - writing down a statement of defence to a revocation application applicable to a patent issue decision made by the State Office for Inventions and Trademarks. The specific exam organized for the geographical mark and indication field may consist in the following tests: a) a theoretical examination including 10-15 questions regarding the knowledge for the application of the legislation in the geographical mark and indication protection field; b) a hands-on test including – as applicable: - the creation of a regulatory deposit for the application for a Romanian applicant or a foreign applicant; or - the creation of a regulatory deposit by a Romanian application for the national or international registration of a mark abroad; - a test in the geographical indication field; c) a hands-on test for supporting in writing a temporary refusal endorsement, an opposition or an objection. The exam organized for the industrial drawing and model field may consist in the following tests: 14
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a) a theoretical examination including 10-15 questions regarding the knowledge for the application of the legislation in the industrial drawing and model protection field ; b) a hands-on test including: - the creation of a regulatory deposit of an application for registration of a industrial drawing and/or model, including to draw up a description of a industrial drawing and/or model based on a graphical representation; - the supporting in writing of an opposition to the registration or of an objection regarding a industrial drawing and/or model. The exam organized for the semiconductor product topographies field may consist in the following tests: a) a theoretical examination including 10-15 questions regarding the knowledge for the application of the national and international legislation in the field of semiconductor product topographies; b) a hands-on test including: - the creation of the national regulatory deposit for the registration of a semiconductor product topography; or - the response to a letter sent by a client who wants to know about the protection of some semiconductor product topographies; or
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- the supporting in writing of an objection regarding the registration of a semiconductor product topography. The procedures regarding the access and monitoring after achieving the industrial property attorney profession are summarized in figures 1 and 2, where the role of each competent authority is being delimited both when achieving the industrial property attorney quality and the conditions that have to be met for maintaining it . The main “qualities� the industrial property attorney has to have are the following: - to know all the regulatory acts applicable to the field he/she is authorized for (i.e. patents / trademarks / drawings and models); - to correctly express himself/herself in Romanian both written and spoken; - to speak at least one of the international languages: English, French, German, i.e. he/she has to correctly and fluently express himself/herself both written and spoken. - to properly know a technical field in the patent attorney case (example: mechanics, chemistry, etc.). - moreover, the industrial property attorney has to have an irreproachable moral status.
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SCHEMA LOGICĂ DE OBŢINERE A CERTIFICATULUI DE ATESTARE ÎN PROFESIA REGLEMENTATĂ DE CONSILIER ÎN PROPRIETATE INDUSTRIALĂ START
DEPUNERE DOSAR EXAMEN
CONSTITUIREA COMISIEI DE EXAMEN
- cerere de înscriere; - curriculum vitae; - copie certificat de naştere - copie diploma de absolvire - cazier judiciar - copie carnet de muncă însoţită de o adeverinţă care să ateste o practică de cel puţin 3 ani în profesia de bază - adeverinţă avizată de CNCPIR care să ateste o practică de trei ani în domeniul proprietăţii industriale - dovada de plată a taxei de examinare
NU EVALUARE DOSAR
DA NU
DESFĂŞURARE EXAMEN
Rezultatele examenului pot fi contestate în termen de 15 zile de la comunicare şi sunt reanalizate de o comisie constituită în acest scop, al cărei preşedinte este directorul general al Oficiului de Stat pentru invenţii şi Mărci sau împuternicitul acestuia.
DA ACHITARE TAXĂ ELIBERARE CERTIFICAT ATESTARE
ÎNSCRIEREA ÎN CNCPIR
PUBLICAREA ÎN BOPI
STOP
Fig .1 The activity carried out by the State Office for Inventions and Trademarks for access to the industrial property attorney profession
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SCHEMA LOGICĂ DE OBŢINERE A DREPTULUI DE LIBERĂ PRACTICĂ ÎN PROFESIA REGLEMENTATĂ DE CONSILIER ÎN PROPRIETATE INDUSTRIALĂ AUTORIZAT START
DEPUNERE DOSAR AUTORIZARE LA CNCPIR
NU
EVALUARE DOSAR
DA
- cerere de autorizare in care să fie precizat domeniul în proprietate industrială pentru care se optează să se profeseze; - copie certificat OSIM - copie certificat de naştere - copie diploma de absolvire - cazier judiciar - copie act de proprietate/ închiriere a sediului de practică a profesiei; - precizarea formei de organizare a profesiei pentru care se optează: cabinet individual/ asociat, societate civilă profesională de proprietate industrială, societate comercială având ca unic obiect de activitate domeniul proprietăţii industriale - dovada de plată a taxei de înscriere
ELIBERARE AUTORIZARE DE LIBERĂ PRACTICĂ
ELIBERARE LEGITIMAŢIE DE CONSILIER ÎN PROPRIETATEA INDUSTRIALĂ
ÎNSCRIEREA ÎN CNCPIR
TRANSMITEREA LISTELOR ACTUALIZATE CU CONSILIERII PE DOMENII CĂTRE OSIM
Plata taxei anuale Menţinerea condiţiilor de compatibilitate iniţiale
CONDIŢII DE MENŢINERE
STOP
Fig. 2 The activity carried out by the National Chamber of Industrial Property Counsellors for access to the industrial property attorney profession
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1.3 Landmarks
for
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the
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industrial
property
attorney
profession in the EU states The Czech Republic. In the Czech Republic the access to the industrial property attorney profession is being regulated by the Law issued by the Parliament on June 10th, 2004 for this particular purpose and basically the regulations are extremely similar to those laid down in the Romanian system. At national level, in the Czech Republic there is a registry of the industrial property attorneys, kept by Chamber of Patent Attorneys, an institution seated in Brno. The conditions for joining the Chamber are: the Czech or European Economic Area citizenship, a graduate of academic studies, passing an exam in front of a commission appointed by the Industrial Property Office, which consists in two tests: written and oral. The examination commission includes two members appointed by the Chamber of Patent Attorneys and two members appointed by the NPO. Moreover, just as in Romania, the candidates have to meet the condition saying that prior to the examination, they should have had 3 years of practice in industrial property. Following the promotion of the exam and the confirmed that all the access conditions as a Chamber member, the candidate takes a specific oath in front of the President of the Chamber. 19
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Germany In Germany the profession is not being regulated, although at national level there is a registry for the identification of the industrial property attorneys kept by the Industrial Property Attorney Association
(Patentanwaltskammer5).
The
Industrial
Property
Attorney Association is seated in München6 and Duisburg7 respectively. The access conditions are the following: a graduate of technical academic studies and practice in the field, or 10 years as an employee working for a industrial property department, or 34 months of training, out of which 26 under the supervision of a industrial property attorney or of the patent agent per department, plus 2 months at the German Office for Inventions and Trademarks (Deutsches Patent - und Markenamt, DPMA) and 6 months at the Federal Court for Patents (Bundespatengericht). In both cases, the candidate has to attend a training program in the legal field, which can also be in the form of distance learning (Fernuniversität Hagen) and a final exam. The final exam for joining the Industrial Property Attorney Association includes two written tests and an oral test, and after 5
www.patentanwalt.de Patentanwaltskammer (PAK) Tal 29 80331 München, Germany, www.patentanwalt.de , Uhlandstr. 1 7 47239 Duisburg, Germany, www.vpppatent.de, Bundesverband der Deutschen Patentanwälte e.V. Geschäftsstelle Deichmannhaus am Dom 6
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passing them the candidate’s name is entered in the “Registry for the identification of the industrial property attorneys”.
Denmark. In Denmark the profession is not being regulated and there is no registry for the identification of the industrial property attorneys. The profession is practiced through two private professional associations: the Association of Danish Intellectual Property Attorneys ADIPA8 and the Danish Association for Industry-Applied Patents (Dansk Forening for Industriens Patentog Varemærkespecialister9); The attorneys may join the industrial property associations if they meet the following conditions regarding the professional practice: 3 years of practice in order to join them as a member with full rights , 1 year of practice in order to become an associate member - for industry (in this case in order to become a member the person should be employed by a Danish industrial enterprise or an institution that is the partner of such an enterprise dealing with the intellectual property rights – patents, trademarks, etc.). No examination is necessary for joining the professional associations.
8 9
www.adipa.dk www.dipinfo.dk 21
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Training takes place in: the Danish Institute for Intellectual Property Rights, (Dansk Institut for Immaterialretsuddannelse DIFI10), the Centre for International Industrial Property Studies CEIPI11 or EPCtutors12, which is a non-profit association organizing classes with the main objective of preparing the students for passing the European examination for qualification in the profession.
Spain In Spain the profession is not being regulated, but there is a record of industrial property attorneys within the State Office (Oficina Española de Patentes y Marcas – OEPM13). The registration in this record is done through two associations, one for the industrial property attorneys at national level - the Association of Industrial Property Agents (Colegio Oficial de Agentes de la Propriedad Industrial - COAPI14) and the other one for industrial property attorneys at international level – the Spanish Association of Industrial and Intellectual Property Agents (Asociación de Agentes Españoles Autorizados ante Organizaciones Internacionales de Propriedad 10
www.difi.dk www.ceipi.dk www.epctutors.dk 13 www.oepm.es 14 Calle de la Montera, 13 28013 Madrid, Spain 11 12
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Industrial e Intelectual - AGESORPI15). The entry into these professional associations means that you have to be a graduate of the technical academic education and although no conditions are necessary for the hands-on experience, you would have to take an examination before a commission composed of the members in the State Office and COAPI. The training courses are mainly organized under the supervision of COAPI.
Great Britain. In Great Britain, the responsible governmental authority is the Intellectual Property Office. The Depository of the Register for the industrial property attorneys is the Intellectual Property Regulation Board - IPReg16. There are two titles for the industrial property attorney, i.e. the Patent Attorney and the Trade Mark Attorney. The representative association for this profession is The Chartered Institute of Patent Attorneys - CIPA17. The access to this profession is done through a series of examinations that can be taken only by the qualified persons who 15
Paseo de Gracia, 65 bis 08008, Barcelona, Spain http://ipreg.org.uk/public/what-is-an-attorney/what-to-expect-from-anattorney/ 17 95 Chancery Lane London WC2A 1DT United Kingdom www.cipa.org.uk/pages/home 16
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hold degrees issued by an university in Great Britain, the Technical University or another qualification deemed by the Joint Examination Board (JEB) as being equivalent. Basically, it involves passing six partials that the candidate is not obligated to take if he/she attends a training course and takes two final examinations. Although for taking the exams no hands-on period is required, for entering the National Register at least two years of hands-on full-time activity is required, which has to be supervised by a custodian (a mandatory or industrial property attorney) or four years of full-time activity identification level the respective intellectual property field, including in the State Office for Inventions and Trademarks in Great Britain. The two final examinations are focused on the interpretation / validity of patents and the counselling for obtaining them and are organized by the JEB Examination Commission, a commission including also members in the CIPA association.
Italy In Italy the Register of industrial property attorneys is subordinated to the Order of Industrial Property Attorneys (Ordine dei Consulenti in ProprietĂ Industriale - OCPI18). Although the
18
Via G. Donizetti 1/A 20122 Milan, Italy, www.ordine-brevetti.it 24
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profession is not being regulated, there are some access conditions: the person should be a graduate of a higher education institution in Italy or abroad and recognized in Italy – with at least three years of studies. The hands-on activity is also necessary: 18 months of training at a company or specialized services under the supervision provided by a custodian (an industrial property attorney with at least 5 years of experience). The registration in the Probationer Register is mandatory for the person to have access to the final qualification exam. Similar to the legal provisions in Romania, the examination is not necessary for the Italian citizens having been employed as examiners at the European Patent Office (EPO) or for the employees with management positions for at least five years at the Italian
Office for Inventions and
Trademarks (Ufficio Italiano Brevetti e Marchi – UIBM19). The final exam consists in 2 hands-on tests regarding the patents and trademarks and the testing of the legislative competences in the specific field of the industrial property and an oral test in: the international legislation applicable to the industrial property, linguistic skills (English, French or German as foreign languages) and technological knowledge in chemistry, mechanics or electronics, as
19
www.uibm.gov.it 25
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applicable. If a candidate comes from the European Qualifying Examination (EQE) he/she is allowed to take the final examination without the hands-on activity being a prerequisite.
The Netherlands. In the Netherlands, the registration of patent attorneys is done through the Dutch Patent Register (NL Octrooicentrum20). We also have to add that in the Netherlands, the office is not structured based on Patents and Trademarks, but only on Patents as for the trademarks there is a common law and a common Office for the BENELUX). The representative association at national level is the Order of Industrial Property Attorneys seated in The Hague (Orde van Octrooigemachtigden21). The conditions for having access to this association are as follows: the person has to having been awarded an academic degree for a science branch, technology, engineering or agriculture and should have 3 years of practice in the industrial property field. The examination for the registration in the Patent Register is done through a written paper based on six modules:
20
www. register.octrooicentrum.nl Prinses Beatrixlaan 2 2595 www.octrooigemachtigde. nl 21
AL
Den
Haag,
The
Netherlands
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1) general legislation (3.5 h) 2) patent specific laws (3h) 3) other international laws (3 h) 4) drawing up a counselling report in a patent-related issue (8 h) 5) drawing up a patent application 6) argumentation for a patent (4 hours for one patent) The examination commission is appointed by the Ministry of Economy and is composed of representatives of the State Office.
Portugal In Portugal, the Register of industrial property attorneys is subordinated to the National Institute for Industrial Property (Instituto Nacional de Propriedade Industrial INPI22). The representative associations at national level are the Portuguese Association of Mandatories to the European Patent Office (Associação Portuguesa dos Mandatários Europeus de Patentes AMEP23) and the Association of Industrial Property Attorneys (Associação dos Consultores em Propriedade Industrial ACPI24). The conditions for having access to this profession are as follows: the person should have obtained an 22
www.marcasepatentes.pt
23
Rua Vitor Córdon,14 1249-103 Lisboa, Portugal Rua do Salitre, 195 1269–063 Lisboa, Portugal, www.acpi.org.pt
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academic degree following at least 3 years of studies and should have an Office either in Portugal on within the European Economic Area. The exam for being entered in the national register consists in two tests - written and oral – supervised and evaluated by a commission from the National Institute for Industrial Property.
II. Validation / certification procedures for the competences applied by the competent authorities in the countries where the industrial property attorney’s profession is being regulated The data provided by the European Commission (EC25) at EU level indicate that there are 17 states where the industrial property attorney’s profession is being regulated: Austria, Belgium, The Czech Republic, Finland, France, Hungary, Germany, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Poland, Portugal, Slovakia, Sweden and Great Britain. In all of these states, the applied general recognition procedure is the one laid down in Directive
25
http://ec.europa.eu/internal_market/qualifications/directive_in_practice/rec ognition/index_en.htm 28
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2005/36/EC regarding the professional qualification recognition by directly applying to the competent authority in the Member State. The profession regulated at regional / European level and truly liberal at European level is the Patent European Attorney profession regulated by the European Patent Convention26, Article 134 (EPC), adopted in Munchen on October 5th, 1973. The access to the European Attorney’s profession is done by taking an exam before the European Patent Office (EPO) or through the application of the clause stipulated by Article 134, paragraph (3) in the Convention (Grandfather clause). The European attorneys having the right to practice before the European Patent Office (EPO) have to be members in the Institute of Professional Representatives before the European Patent Office (EPI). At national level, each European country has its own specific legislation but for the protection of the industrial property throughout the European Union the attorneys have to be authorized under the supervision provided by a custodian and based on an exam organized by EPI. The European Patent Institute’s portfolio includes the following objectives:
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- to cooperate with the European Patent Organisation (EPO ) in issues regarding the European patent attorney’s protection 27
especially with reference to the regulations required for the examination that has to be taken for obtaining the qualification as a European patent attorney; - to support and disseminate the activity and novelties in the industrial property field to its members; - to promote the compliance with the code of professional ethics by its members; - to provide the connection – together with the EPO and other institutions – regarding all the aspects on the industrial property, with focus mainly on invention patents . The EPI activity is carried out mainly in the working commissions composed of members with proper experience in the relevant fields of business, members who are nominated by the national groups and elected by the EPI Council based on their expertise and notoriety. At the moment, there are approximately twenty active EPI commissions, each of them being in charge with its field of responsibility and providing regular reports including comments and recommendations for the EPI Council. These
27
www.epo.org/register
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commissions are essential for the provision of proper information and advice to the Management Board and the Council. Therefore, EPI is the organization representing – at European level – the interests of the European patent attorneys. It constantly provides the improvement of its members’ professional practice and conduct standards. Moreover, it contributes to the development of intellectual property right protection at international level and promotes the training of young people who want to have access to the European patent attorney’s profession. In order to become a European patent attorney, the person has to hold the proper qualification in the science and technology fields. Following the graduation of such academic studies, the candidate shall carry out his/her professional activity in the industrial property field, i.e. in the invention patent field, preferably under the supervision provided by a qualified professional representative of by an EPI custodian. The practical professional activity shall be focused on learning how to solve the industrial property protection issues and can be cried out in private units or an industrial enterprise. The supervised professional activity (probation) lasts for at least three years. After the probation ends, the candidate may apply for taking the European qualification exam. Several stages shall be necessary 31
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for taking the exam and first of all they require that the candidate passes the pre-examination stage consisting in a multiple choice test indicating whether or not the candidate has the minimum knowledge for taking the exam. Only after passing the pre-examination stage the candidate may apply for the main (final) exam. The main exam consists in four written tests covering a threeday period and their promotion means that the candidate is qualified and allowed to have access to the European patent attorney’s profession. The EPI also includes the Professional Education Committee (PEC), which is a consultative body of the EPI Council on issues related to education and professional qualification. Each Member State has a representative within the Professional Education Committee who is also in charge with the various activities specific to the Committee’s field of business, such as the organization of custodian activity and the preparation of the EPI students for taking the attestation exam for the European patent attorney’s profession. The Professional Education Committee (PEC) is convened regularly in order to discus issues related to education, qualification and assessment. The current affairs on the PEC agenda are the low rate of success achieved by the candidates in the exams and the continuous training for the representatives of this profession. The 32
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goal is to take certain actions that – as applicable – may be taken in order to improve the rate of success for the promotion of the exam for access to the European patent attorney’s profession (European Qualifying Examination (EQE)). For this purpose the candidates, the custodians and the PEC maintain in permanent dialogue. The continuous training and the organization of various seminars or other forms of training for all the EPI members in a very important task for the PEC in order to maintain the industrial property attorney’s profession in Europe a competitive one. Another important task taken over by the PEC is the integration of the industrial property attorneys in the future Member States in the European Patent Convention (EPC) or in the countries that have recently acceded to the qualification European system in order to maintain a high level of professional education in the European qualification system.
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III. Recognition processes for the qualifications achieved in other EU Member States
3.1 The procedure for the recognition of the industrial property attorney’s profession The citizen of a Member State in the European Union (EU) or of another state in the European Economic Area (EEA) may practice – under certain conditions – the industrial property attorney’s profession in Romania if he/she complies with the legal requirements, mainly those laid down in Article 8, paragraph (1) in Ordinance 66/2000. Therefore, the person having obtained the industrial property attorney’s qualification in the Member State of origin or provenance may ask for the recognition of his/her degree in order to be accepted for the industrial property attorney’s profession and for practicing it in Romania (Article 8, paragraph (2) Ordinance 66/2000). The citizen of a Member State in the European Union or of another state in the European Economic Area shall prove the fulfilment of the conditions laid down in Article 5 d) and e) in Ordinance
no.
66/2000,
approved
according
to
Law
no.
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with the documents issued by the competent authorities in the state of origin or provenance, which are recognized or equivalated under the law (Article 8, paragraph (3) Ordinance no. 66/2000). The provisions laid down in Article 8 in Ordinance no. 66/2000, approved by Law no. 437/27.06.2002, amended and completed by Law no. 331/2006, completed by the provisions laid down in Law no. 200/2004 regarding the recognition of diplomas and professional qualifications for the professions regulated in Romania, with current amendments, as well as the provisions laid down in the treaties signed by Romania (Article 8, paragraph (5) Ordinance nr 66/2000). Therefore, the citizen of a Member State of the European Union or of another state of the European Economic Area may practice the industrial property attorney’s profession in Romania if he/she complies with the conditions laid down in the law, according to Article 8, paragraphs (1)÷(5) in Ordinance no. 66/2000. According to article 26 in the Ordinance, as an exception, the citizens of the EU Member States or of other states that are part of the European Economic Area and who have settled down in any of these states for practising the industrial property attorney’s profession may carry out occasional or temporary activities that are specific to this profession in Romania by filing a declaration to the 35
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National Chamber of Industrial Property Counsellors (CNCPIR). The declaration shall indicate: - the person’s first and last names ; - the professional title in the state where the person has settled down or – if no such title exists – the academic title; - the entitling and address of the competent authority in the country where the person has settled down, if the profession is subject to authorization in that country, his/her office in the country where the person has settled down; - the register in which he/she is recorded in the country where the person has settled down, - the registration number or another means of identification equivalent in this register, - the place where he/she caries out his/her activity in Romania and his/her mailing address. The applicant’s declaration shall also be accompanied by the following documents: a) the proof of his/her citizenship; b) the document certifying that its holder is legally settled down in a Member States of the EU or in another state part of the European Economic Area
for practising the industrial property
attorneys’ profession and that at the time of filing the application 36
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he/she is not the subject of any interdiction from practicing the profession, even if temporarily; c) the proof of his/her professional qualification or – if in the Member State where the person has settled down the industrial property attorney’s is not being regulated – the proof issued by the competent authorities in this country saying that its holder has exercised the activities specific to this profession for at least 2 of the last 10 years. 3.2 The European citizens’ application to SOLVIT SOLVIT is a problem solving network through which the EU Member States and other three countries (Iceland, Lichtenstein, Norway) cooperate without using any legal proceedings for solving the problems arising due to the inappropriate application by the public authorities of the legislation regarding the internal market. SOLVIT deals with the cross-border problems between an enterprise or a citizen (on one hand) and a public authority (on the other hand) where there is the possibility that the community legislation was incorrectly applied. The fields where the problems are very frequent and where there are complaints to be treated via SOLVIT are as follows:
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•the professional recognition of qualifications and diplomas / degrees; • the access to education; • residency permits; • the rights to vote; • the social security; • the rights to occupy a position; • the driver’s licenses; • the registration of motor vehicles; • the border control; • the access of products to the market; • the access of services to the market; • settling down as an independent; • public procurements; • taxation; • the free movement of capitals and payments; In each of the EU Member States and the three countries mentioned above there is a SOLVIT centre providing these services
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free of charge. In Romania the SOLVIT28 is established under the jurisdiction of the Department for European Affairs. The diagram for the resolution of the applications filed by the nationals coming to Romania, who believe they have been wronged by the incorrect application of the internal market legislation, is provided in Figure 1. Any complaint sent via SOLVIT is solved by following four stages:
Fig. 1 Complaint resolution via SOLVIT 28
Guvernul Rom창niei, Departamentul pentru Afaceri Europene, Bvd. Aviatorilor nr. 50A, Sector 1, Bucuresti 011854, Romania, Tel.+4021.308.53.60, Fax:+4021.318.55.24, E-mail: solvit@dae.gov.ro. 39
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Stage 1 – the acceptance of the case based on the verification of the action legality and if the documents included in the application by the centre of origin are not sufficient, additional documents are requested; Stage 2 – the receipt of the solution: the competent authority involved in the filed case is contacted and cooperates so that the proper solution is found pursuant to the European legislation; Stage 3 – the proposal of the solution (implemented or not), which has to be real, practical and consistent with the European legislation; Stage 4 – the monitoring of the solution if it was not implemented when making the proposal. A case is deemed as having been solved only when the solution is implemented and solves the applicant’s problem. For the Romanian citizens who want to use SOLVIT in an EU Member State, the contact details regarding the national points and the contact persons may be found on the European Commission webpage29. (Annex 1 – for the countries studied as part of the IMI PQ NET Romania project).
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The EU Member States have to intensify their efforts in order to make sure that the individuals and companies can effectively make use of their rights related to the unique market, guaranteeing an effective application and the execution of the legislation regarding the unique market by the national courts by providing high-quality egoverning information, instruments and procedures, as well as by making investments into mechanisms designed for quick solving of problems. The SOLVIT potential is still insufficiently exploited as a key instrument for solving problems at national / European level, partly because of the insufficient number of employees working for the various SOLVIT centres and at the same extent due to the insufficient information of the European citizens on the competences of these centres. IV. The practising of the industrial property attorney’s profession in Romania The industrial property attorney who is a member in the Chamber has the right to freely accede to other forms of professional association compatible with his/her profession (Article 19 Ordinance 66/2000).
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Therefore, pursuant to Article 20 in Ordinance 66/2000, the free practice industrial property attorneys carry out their activity in authorized individual offices, associated individual offices based on a contract, professional civil societies – legal entities or trading companies having the industrial property field as their unique field of business. Moreover, the authorized industrial property attorney may also practice his/her profession as an employee specialized in the industrial property protection field within an unit or a trading company having a field of business other than the industrial property (Article 21 paragraph (1) Ordinance 66/2000). The industrial property attorney has a noble mission, that is to defend the ownership over the creation of the human mind – the intellectual property, with an important part hereof, the industrial property. This area includes the human intelligence achievements that have led to the resolution of various applicative problems and that have generated reproducible solutions at industrial level. Each month OSIM published in the Industrial Property Official Bulletin (BOPI) the lists including the attorneys having the right to practice the profession as well as their forms of organization where they carry out their activity, according to the data communicated by the Chamber. 42
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4.1 The deontological code applicable to the industrial property attorney’s profession The entire activity carried out by the industrial property attorneys is based on the “Professional Deontology Code”, which includes well structured rules that have to be complied with. Therefore: 1. The industrial property attorneys shall comply with the deontological code without taking into account their personal interests or other indications or interests. 2. The industrial property attorneys have to practice their professional activity with honesty, loyalty and courtesy. 3. The excuses and motivations in the cases of deviation from the professional morality are not accepted. In his/her office, the industrial property attorney is liable for the application of the deontological code principle for all his/her employees. 4. The professional competence has to be provided to the customer irrespective of the personal feelings or other interests. The favours applied for nationality, profession, religion, etc. are not acceptable. 5. The confidential information received from the client or in relation to the client and related to the profession cannot be disclosed 43
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until the expiration of the term applicable to such obligations. Such a term can be indicated by the Contract entered into with the client or refers to the protection timeframe stipulated by the legislation for the industrial property object or it is estimated in a concrete manner. This also applies to the relocation of the working premises inside or outside the industrial property protection system. 6.
(1) The attorney is authorized to inform the public on the
services he/she offers, provided that the information is true and objective and complies with the professional secrecy and other essential principles applicable to this profession. (2) The following aspects shall be deemed as exceptions to the allowed advertising rule according to paragraph 1: a) The disclosing of a client’s name without his/her express consent; b) The indication of the name of another professional entity if no written cooperation convention has been signed between the member and that entity; c) The promotion, announcement or publication of purchase, sale or negotiation offers targeting various intellectual property rights without the client’s consent.
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7.
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The representation of people involved in a conflict of
interests shall be avoided. The basic principle is to not cause any prejudice. 8.
His/her attitude towards the other industrial property
attorneys is collegial, fair and helpful. 9. The praising and comparative statements regarding the offered services are not allowed. 10. The settlement of financial obligations has to be done promptly. No excuse shall be made for the client’s incapacity to make payments when the case involves payment to other industrial property attorneys the work was ordered from. 11. The earnings from the clients shall be done as fees for the agency. No commissions for mediation and business shall be accepted. 12. The job ads and offers in the field should not prejudice the industrial property attorney’s profession, contain praising or comparative statements, damage the interests of other industrial property attorneys. The disciplinary actions taken if the industrial property attorneys do not comply with the professional deontology code are: reprehension, warning, interdiction to practice the profession for 3-12 months, permanent interdiction to practice the profession. The Chamber’s Disciplinary Board shall assess how 45
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serious the facts are and shall apply the relevant sanctions, and the decision may be appealed in court.
Conclusions The authorized industrial property attorney’s profession is extremely important for the progress and prosperity of humanity due to the fact that it provides legal protection for the new creations and encourages investments, which evidently stimulate the economic growth by generating new jobs and fields of business. These guidelines have provided concrete information on the authorized industrial property attorney’s profession as follows: The authorized industrial property attorney’s profession is properly based on the Romanian legislation through the Government Ordinance no. 66/2000 regarding the organization and practicing of the industrial property attorney profession, republished in the Official Gazette no. 1019 dated December 21st, 2006, based on Article II in Law no. 331/2006 for the amendment and
Government
Ordinance
no.
66/2000
regarding
the
organization and practicing of the industrial property attorney profession.
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Regarding the procedure for the examination of the candidates for the industrial property attorney’s regulated profession is shared among the two competent authorities, i.e. the State Office for Inventions and Trademarks (OSIM), which examines the candidates and holds the Register of industrial property attorneys in Romania and the National Chamber of Industrial Property Counsellors as the national professional body. Moreover, the Romanian legislation is harmonized with the European legislation in the professional qualification field and the foreign or Romanian citizens having been granted access to the profession in other EU Member States or EEA states are recognized according to the current legislation, i.e. Article 8 paragraphs (1)÷(5) in Ordinance no. 66/2000. At European level there is a body – i.e. the European Patent Institute (EPI) – representing the industrial property attorneys’ interests in the following fields. - the training and examination of the national attorneys for taking the exam for becoming European attorneys; - the representation of the European attorneys’ interests in their relation to the European Patent Office; - the continuous training of the European patent attorneys.
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Besides Romania, in the European Union there are 17 other states where the industrial property attorney’s profession is being regulated: Austria, Belgium, the Czech Republic, Finland, France, Hungary, Germany, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Poland, Portugal, Slovakia, Sweden and Great Britain. In all of these states the recognition of the professional qualification is done according to the general procedure for the professional qualification recognition during which the competent authority in that state also analyzes each file for access to the regulated profession. In the states where the profession is not being regulated the access to free practice is done by joining the professional associations that are representative at national level.
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Bibliographic Sources 1. Government Ordinance no. 66/2000 regarding the organization and practicing of the industrial property attorney profession, republished in the Official Gazette no. 1019 dated December 21st, 2006, based on Article II in Law no. 331/2006. 2. Instructions no. 108 dated October 17th, 2002 for the application of the Government Ordinance no. 66/2000 regarding the organization and practicing of the industrial property attorney profession, issued by the State Office for Inventions and Trademarks (OSIM) and published in the Romanian Official Gazette no. 826 dated November 15th, 2002; 3. The Bylaws of the National Chamber of Industrial Property Counsellors, with current amendments made during the Conference in January 2011; 4. The deontological code for the industrial property attorney’s profession; 5. Urgency Ruling no. 49/20.05.2009 regarding the service providers’ freedom to settle down and their freedom to provide services in Romania, published in Part I of the Romanian Official Gazette no. 366/01.06.2009. 6. The Supplement to OJ EPO 1/2013, The deontological code for the industrial property attorney’s profession; 7. The Patent Profession in the EPC Contracting States (disregarding EEA free movement of professionals and company law) 49
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8. EQE Candidate Support Project, Application Form 2013
List of acronyms used
IMI - Internal Market Information System; IMI PQ NET Romania – the project called “Creation and consolidation of the IMI network for the Professional Qualifications in Romania"; CNCPIR – National Chamber of Industrial Property Counsellors in Romania; OSIM – State Office for Inventions and Trademarks; COR – Romanian Occupational Classification; BOPI – Industrial Property Official Bulletin; NPO – State Office for Inventions and Trademarks; EPI - Institute of Professional Representatives before the European Patent Office; COAPI – Association of Industrial Property Agents (Colegio Oficial de Agentes de la Propriedad Industrial) (Spain); CIPA – Chartered Institute of Patent Attorneys (Great Britain); JEB – Joint Examination Board (Great Britain); EPO – European Patent Office;
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SOLVIT – The network financed by the European Commission for supporting the citizens and enterprises if there is a dispute between them and an official body in any of the EU Member States.
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Annex 1 Contact Details Country Barbora Hanáková, Zuzana Bakotová, Tomáš Stehlík Tel. +420 22 422 1701 The Czech Odbor vnitřního trhu a služeb EU, Ministerstvo průmyslu Fax. +420 22 485 3079 Republic a obchodu, Na Františku 32, CZ - 11015 Praha 1 solvit@mpo.cz Tel. +45 35 46 62 00 (the Jens Kasper Rasmussen, Sofie Freilev, Karin Kragshave hotline) Kristian Yde Agerbo, Danish Business Authority (Internal Tel. +45 35 46 66 16 Denmark Market Centre), Langelinie Allé 17, DK - 2100 Tel. +45 35 46 66 73 Copenhagen SOLVIT@erst.dk Lisa TEICHMANN, Bundesministerium für Wirtschaft und Fax. +49 3018 615 5379 Germany Technologie, Scharnhorststr. 34-37, DE - 10115 Berlin solvit@bmwi.bund.de Ana Iglesias, Ana María Hernández, Javier Pascual Tel. +34 91 379 9999 Pontones, SOLVIT – España, Ministerio de Asuntos Fax. +34 91 394 8684 Spain Exteriores, y de Cooperación, Serrano Galvache 26, ES solvit@ue.maec.es 28033 Madrid Giuseppina VALENTE, Francesco CIPRI, Massimo Tel. +39 06 677 95 844 SANTORELLI, Presidenza Consiglio Ministri, Fax. +39 06 677 95 044 Italy Dipartimento Politiche Comunitarie, Piazza Nicosia 20, solvit@palazzochigi.it IT - 00186 Roma Koen van Ginneken, SOLVIT Nederland, Ministerie van Tel. +31 70 379 7708 Economische Zaken, Landbouw en Innovatie The Fax. +31 70 379 7014 Netherlands Bezuidenhoutseweg 30, Postbus 20101, NL - 2500 EC Den solvit@mineleni.nl Haag Tel. +43 1 71100-5119 Sylvia Vana, Alexandra Gaudmann-Heber, Christian Tel. +43 1 71100 - 5293 Müller, Bundesministerium für Wirtschaft, Familie und Tel. +43 1 71100-5187 Austria Jugend, SOLVIT Center, Abteilung C1/2, Stubenring 1, AT Fax. +43 1 71100-2207 - 1010 Wien solvit@bmwfj.gv.at Rosarinho MELANCIA, Mafalda DE SIQUEIRA, Tel. +351 21 393 57 53 francesca FONTES, Ministério dos Negócios Estrangeiros Tel. +351 21 393 57 50 Tel. +351 21 393 55 54 Portugal Direcção Geral dos Assuntos Europeus, Serviço do Mercado Interno, Rua Cova da Moura, 1, PT - 1350-115 Fax. +351 21 393 57 98 Lisboa solvit@dgac.pt Tel. +40 21 308 53 40 Romulus BENA, Karina STAN, Ramona-Maria CIUCA Tel. +4021 308 53 71 Ministerul Afacerilor Europene, Guvernul României Tel. +40 37 410 45 23 Romania Bvd. Aviatorilor nr. 50A, Sector 1, Bucuresti 011854, Fax. +40 21 308 53 96 Romania solvit@dae.gov.ro Tel. +44 20 7215 2833 Chris Korcz, Department for Business, Innovation and Great Fax. +44 20 7215 2234 Britain Skills, 1 Victoria Street, UK - London SW1H 0ET solvit@bis.gsi.gov.uk
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