Teodor Bodoaşcă**

Abstract

Articles 60‑61 of Law no. 64/1991 on patents[1] establish certain particular procedure rules for the settlement of disputes relating to the capacity of inventor or patent holder or having as object other rights derived from the granting of a patent. Specifically, article 60 contains a rule of material competence in the case of three categories of disputes [paragraph (1)] and the enforceability against third parties of court decisions delivered for the settlement of such disputes [paragraph (2)]. In exchange, article 61 lays down special rules in connection with the application of provisional measures, in the case of violation of the economic rights conferred by the patent. Given that article 60 paragraph (1) refers to „disputes”[2], while article 61 of Law no. 64/1991 regulates „provisional measures”[3], we conclude that we are in the presence of civil procedure rules that apply with priority in relation to the general legislation, in accordance with the incontestable principle specialia generalibus derogant. In fact, the reference made in article 61 paragraph (3) to the provisions of the Civil Procedure Code reinforces this conclusion.

By this study we aim in particular to make a logical and legal analysis of the said provisions of Law no. 65/1991 and of the current Civil Procedure Code and to substantiate several de lege ferenda proposals for the improvement of legislative solutions in this field.

 

** Prof. univ. dr. Universitatea „Dimitrie Cantemir” din Târgu Mureş, E‑mail:This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] Law no. 64/1991 was published in the Official Gazette of Romania, Part I, no. 212 of 21 October 1991, and then republished in the Official Gazette of Romania, Part I, no. 541 of 8 August 2007 and no. 471 of 26 June 2014; subsequently, it was amended and supplemented. Brevitatis causa, to avoid repetition and facilitate expression, hereinafter in this study the references to the various texts of Law no. 64/1991 will be made, as a rule, without indicating the legislative instrument.
[2] See articles 21 et seq. of the Civil Procedure Code.
[3] See articles 978‑979 of the Civil Procedure Code.

 

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