Patent

Patent numbers.

A patent is a set of exclusive rights granted by a State to the inventor of a new product or technology, capable of being commercially exploited for a limited period of time, in exchange for disclosure of the patent. invention. The registration of the patent constitutes the artificial creation of a monopoly, and is framed within industrial property, which in turn forms part of the intellectual property regime.

Definition

A patent is a right granted by the State that allows the exclusive exploitation of an invention or its improvements. This right grants the patent holder exclusivity and prevents third parties from making use of the patented technology. The patent holder is the only one who can make use of the technology that he claims in the patent or authorize third parties to implement it under the conditions that the holder sets. Patents are granted by States for a limited period of time which, according to TRIPS standards, is currently twenty years. After the expiration of the patent, any person can make use of the patent technology without the need for the consent of the patent holder. The invention then enters the public domain

The owner of a patent can be one or several national or foreign, physical or legal persons, combined in the manner specified in the application, in the percentage mentioned therein. Patent rights fall within what is called industrial property and, like real estate property, these rights can be transferred by acts inter vivos or by succession, and can be: rented, licensed, sold, exchanged or inherited. Patents can also be valued, to estimate the approximate economic amount that must be paid for them.

The term derives from the Latin patens, -entis, which originally had the meaning of "to be open, or uncovered" (to public inspection) and from the expression patent letters, which were royal decrees that guaranteed exclusive rights to certain individuals in business. Following the original definition of the word, one of the purposes of patent law is to induce the inventor to disclose his knowledge for the advancement of society in exchange for exclusivity for a limited period of time. Then, a patent guarantees a monopoly of exploitation of the idea or of a machine for a certain time.

Traditionally, the reason an inventor is granted a temporary monopoly has been thought to be to encourage inventions to be communicated to society and not remain secret or hidden. It is not so much to reward him for having found something new, from which the community will also benefit, but above all to encourage inventors not to keep their inventions a secret.

Others believe, to the contrary, that the patent system discourages innovation by allowing a company to use a monopoly on a patent to delay the development of new innovations. So, for example, the Federal Trade Commission (FTC), however, argued in June that giving biologics manufacturers any period of exclusivity can actually stifle innovation. Biologics are so much more complex and expensive to produce than traditional medicines that the barriers to what would be 'biosimilar' competitors are high. are already high, says the FTC. Giving biologics greater protection—particularly the 12 years of exclusivity the industry wants—would simply encourage firms to play with what they already have rather than turn to 'new inventions to apply to unmet medical needs.' Patents are one of the options to prevent anyone from copying a product or machinery. At the same time, patents should serve the purpose of effective and rapid diffusion of new ideas in technology, improving access to technology and purchased services.

There are different types of patents, although they mainly fall into three categories:

- Utility patents, these patents include machines, devices, methods, processes, products, etc.

- Design patents, this category includes the exterior lines, ornamentation, texture and aesthetics of something.

- Plant patents, including the cloning of plants and trees.

What is an invention?

An invention is considered any human creation that allows the transformation of matter or energy that exists in nature, for its use by man and to satisfy his specific needs. Inventions that are new (novelty), the result of an inventive activity and susceptible to industrial application or personal applications will be patentable.

What is a utility model?

Utility models are technical creations that affect the shape, structure or constitution of usual and frequent products that attribute to the shaped product a greater utility than it had before imposing that new form on it. It is an invention of lesser importance than those that are normally provided for and protected in the patent regulations of the different countries.

In the course of technical progress improvements of modest scope appear that, despite everything, allow the use of known objects to be more advantageous. For example, the beveled shape of a pen that prevents it from slipping off the table. Although the conformation given to this object increases its utility and is advantageous, it is not an invention in the strict sense because there is not enough inventive step. They are therefore subject to a regulation that shares many features with patents, but which usually includes a shorter duration of the temporary monopoly and a less severe appreciation of the patentability requirements.

Utility models should not be mixed or confused with those formal modifications of the object that only try to attract consumers and make the product more pleasant, without affecting its usefulness, since in this case we are within the scope of industrial design.

Validity

Patents are territorial rights. In general, the corresponding exclusive rights are only valid in the country or region where the application has been filed and the patent has been granted, in accordance with the regulations of that country or region. In any case, patents can be applied for in different countries.

Duration

Patent protection is granted for a limited period, usually 20 years from the filing date of the application.

What is not considered an invention?

• The theoretical or scientific principles.
• The discoveries that consist of making known or revealing something that already existed in nature, even though it was previously unknown to man.
• Schemes, plans, rules and methods to perform mental acts, games or businesses and mathematical methods.
• Computer programs.
• The forms of reporting.
• The aesthetic creations and artistic or literary works.
• The methods of surgical, therapeutic or diagnostic treatment applicable to the human body and those relating to animals, in addition, the juxtaposition of known inventions or mixtures of known products, their variation of use, in form, of dimensions or of materials, unless in fact it is their combination or fusion in such a way that they cannot function separately or that the characteristic qualities or functions thereof are modified to obtain an industrial result or a non-obvious use for a technical one.

What cannot be patented

The list below is not valid in all countries; For example, in the United States and Japan it is possible to patent biological material (genes and proteins).

• The essentially biological processes for the production, reproduction or propagation of plants and animals.
• Biological and genetic material, as found in nature.
• Animal races
• The human body and living parts that make up it
• Vegetable and mineral varieties

In some countries, such as Mexico, the EPO is not allowed, in addition:

• Computer programs per se; for example, the source code.
• Forms of reporting (e.g. data collection, images and others).
• Mathematical Methods
• Methods to perform business, games or mental acts.

Benefits of a patent

Some of the common arguments in favor of patents maintain that the benefits that a patent gives an inventor are:

• It motivates the creativity of the inventor, since he now has the guarantee that his inventive activity will be protected for 20 years and will be the only one to exploit it.
• If the patent has good commercial or industrial success, the inventor benefits from the exploitation licenses that he decides to grant third parties.
• Avoid the plagiarism of your inventions.
• Because the inventive activity will not be stored or used only for itself by avoiding its industrial exploitation; the inventor will always make known, publicize and explain the benefits his invention has.
• For its part, the Government, through the patent, promotes the creation of industrial application inventions, promotes the development and exploitation of industry and trade, as well as the transfer of technology.
• Patents offer current and relevant technological information, which is guaranteed by patentability requirements. It also disseminates new information and also information that is previously known.
• Patents provide information that is not disclosed in other media and includes author data, formulas and drawings that facilitate understanding of invention. It is estimated that between 70 and 80% of the information contained is not published in another type of bibliography.
• The most important thing about patents is that most of them are public, since to be holder of a patent the applicant has to give details and make public its invention.

Damages of the patent system

Some of the common arguments about the social harms of the patent system are:

• It makes the free dissemination of innovations by slowing down technological development.
• It poses monopoly obstacles to free competition.
• It hinders the access of impoverished countries to new technologies.
• It discourages research by establishing a period of exclusive use of technology without needing to improve it.

Validity of a patent

The validity of patents depends on each country. In Mexico, they are valid for 20 non-extendable years and utility models are valid for 10 years, equally non-extendable. When the patent or utility model expires, the protection also expires and the invention belongs to the public domain; that is, the owner no longer has exclusive rights over the invention, which becomes available for commercial exploitation by interested third parties.

The exclusive right to exploit the patented invention grants its holder the following prerogatives:

• If the subject matter of the patent is a product, the right to prevent other persons who manufacture, use, sell, offer for sale or import the patented product, without consent, and
• If the subject matter of the patent is a process, the right to prevent other persons using that process and to use, sell, offer for sale or import the product obtained directly from that process, without their consent.

The exploitation carried out by the person referred to by the law will be considered carried out by the patent holder.

Priority. When a patent is applied for after doing so in other countries, the filing date in the country that filed it first may be recognized as the priority date, provided that it is filed within the terms determined by the International Treaties or, failing that, within the twelve months following the patent application in the country of origin.

Right of the inventor

In all cases, the inventor(s) have this right:

• Recognition of the name.
• Request the patent.

Right of exploitation

The patent holder has what is called a negative right to the patented technology. This right allows you to prevent third parties without your consent:

• Make, use, sell or import the patented product.
• Use the patented process, and use, sell or import the product obtained from that process.

The owner can allow any of the above activities to a certain person or company, granting a license and receiving a payment known as a royalty. He can also transfer ownership of the patent, or assign his right, for a fixed fee. After this, the original holder no longer has anything to do with the exploitation of that patent.

Labor or free inventions

Labor inventions belong to the company, free inventions to the inventor. If the inventor has a working relationship with an employer, Article 14 of the Industrial Property Law refers to Article 163 of the Federal Labor Law, which says:

CHAPTER V. Workers' inventions. Article 163 Attribution of rights to the name and ownership and exploitation of inventions made in the company shall be governed by the following rules:

• The inventor shall have the right to have his name appear as the author of the invention.
• When the worker is engaged in research work or the improvement of the procedures used in the company, on the account of this the property of the invention and the right to the exploitation of the patent shall correspond to the pattern. The inventor, regardless of the salary he had received, shall have the right to supplementary compensation, which shall be set by agreement of the parties or by the Conciliation and Arbitration Board when the importance of the invention and the benefits that may report to the pattern are not commensurate with the salary received by the inventor.
• In any other case, the ownership of the invention shall correspond to the person or persons who made it, but the employer shall have a preferential right, on an equal basis, to the exclusive use or to the acquisition of the invention and the corresponding patents.

Industrial Property Law Publication 1991 (25 years ago) - Last amended 2006

Regulation by country

There are no world patents. Patents, like other Industrial Property rights, are territorially limited and are granted by the State. However, the same invention can be protected by patent in several countries making use of the International Treaties and Regional Agreements that have been signed on the matter. There are currently five organizations that grant regional patents:

• European Patent Office (EPO),
• Euro-Asian Patent Organization (EAPO),
• African Intellectual Property Organization (OAPI),
• African Regional Industrial Property Organization (ARIPO)
• Office of Patents of the Gulf Arab Cooperation Council (GCC).

Patents in Europe

Patents in the European Union are based on two systems: the national patent and the European patent. Neither of them has community legislation behind it. National patents were the first to appear. These patents have been harmonized de facto in all the countries of the Union: all the members of the European Union have signed the Convention of the Union of Paris for the protection of intellectual property (March 20, 1983) and the TRIPS agreement (Trade-Related aspects of Intellectual Property rights), or by its acronym in Spanish TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) on 15 April 1994.

The European patent is based on the EPC (European Patent Convention/European Patent Convention, CPE) or Munich Convention of 1973. The CPE grants rights in as many countries as the applicant wishes. This provides great flexibility. The CPE does not provide a court at the European level but national courts are the ones that have to solve the problems that arise. Nothing prevents different courts from adjudicating the requests that are made to them in different ways. The CPE established the European Patent Office to manage European patents.

On July 24, 1997, the European Commission presented the Green Paper on the Community patent and the patent system in Europe. As a result of the debate initiated by this paper, the commission developed a communication to the European Council, the European Parliament and the Economic and Social Committee on this Green Paper. In this communication, the Commission proposed different initiatives and legislation on the Community patent. On July 5, 2000, the Commission presented a proposal for a council regulation on the Community patent (COM(2000) 412 final). The Council wants this proposal to be approved as soon as possible but it does not look easy.

There is a unified international procedure that allows a centralized application for a patent, whose subsequent processing can potentially give rise to a set of patents in many countries, it is the so-called PCT procedure (Patent Cooperation Treaty / Patent Cooperation Treaty). The PCT procedure can be continued directly as a national patent application or as a European application before the European Patent Office.

The Community patent

The community patent system proposed by the Commission must coexist with the systems in use (national systems and the EPC). Coherence between these systems is achieved thanks to the accession of the EU to the Munich Convention. The EPO will be the organization in charge of examining patents and granting the Community patent. The EPO would continue doing the same job as always.

The main characteristics of the community patent are unity and autonomy. They can only be granted, transferred, revoked or expire for the entire community and can only be subject to proposed legislation and general EU law. The CPE will regulate the procedure for granting the patent and the patentability requirements of this community patent. This patent is, in short, a European patent in the sense of the Munich Convention in which the area of application is the entire community.

Today, the average cost of a European patent (for eight countries) is approximately EUR 30,000. The cost of translations takes 39% of the total. The commission's proposal tries to reduce the cost of the patent by reducing the cost of the translation and the procedure.

To reduce the cost of translation, the proposal requires the translation of the entire patent application into a single working language of the EPO and two additional translations of the claims into the other two. Thus, translating a complete patent into all community languages would cost around €17,000, €5,100 to the three EPO languages, and, according to the commission's proposal, €2,200. It is clear that it is much cheaper.

Another proposal from the commission is to match the cost of procedures with those of the main trading partners. The European patent is three times more expensive than the Japanese one and almost five times more expensive than the American one. Since it is the EPO that examines patents and its rates are set by the Munich Convention, the Commission cannot change them. But it can modify the renewal costs and it does so by bringing the European patent closer to the Japanese and the American one.

To solve the legal problems that arise around patents, the Commission proposes the creation of a Community Court on Intellectual Property. In this way, uniformity in legislation and jurisprudence would be achieved.

The birth of the community patent is proving to be very difficult. An issue as important as industrial property is not easily set aside by the member states.

Patents and computer programs in Europe

Software patents are not an easy point and there are two conflicting opinions about them: patents will help develop the European software industry and patents will prevent its development. The third option, leaving things as they are, is also being defended by some companies in the sector such as IBM.^{[citation needed]} On the one hand, the Commission, the BSA and important software companies (European and, mostly, non-European). On the other side, the open source/free software community represented, mainly by Eurolinux and the main European SMEs in the world of computing. It is not trivial legislation. Patents can be a complete game changer for software development and especially OS/FS software development.

The European Parliament, in its directive 11979/1/04 of March 7, 2005, established that:

A computer program as such cannot constitute a patentable invention. (...) A computer invention will not be considered to provide a technical contribution merely because it involves the use of a computer, network or other programmable device. Consequently, the inventions that use computer programs, expressed in source code, object code or in any other way, that implement methods for the exercise of economic, mathematical or other activities and do not produce technical effects, apart from the normal physical interaction between a program and the computer, network or programmable apparatus of another type in which it is executed, will not be patentable. (...) Member States will ensure that computer inventions can be claimed as a product, i.e. as a programmed computer, programmed computer network or other programmed apparatus, or as a procedure performed by a computer, computer network or apparatus through the execution of a program.

On the other hand, the United States allows software patenting, however a distinction is made between inventing and patenting in the regulations, this means that legal confrontations are much higher than those present in other countries. Whoever proves that they have been the inventor of a product will have preponderance over whoever has patented it. In Latin America, the software patent is an underdeveloped subject and most of the countries make an intellectual treatment of the software while its registration as an invention or idea is done using the regulatory frameworks of copyright.

Legislation

The basic legal principles on the patentability of computer programs are two:

Computer programs "as such" they are not patentable according to article 52 of the CPE. Bound by said treaty, national laws reproduce this article in one way or another.

Patents are granted for inventions that possess novelty, inventive step, and have an industrial application.

Based on the aforementioned principles of what cannot be patented and what is not considered an invention, different European courts have ruled that a technical invention that uses a computer program is patentable. The first and most important of these examples comes from two decisions of the Technical Chamber of Appeals of the European Patent Office, both involving IBM. The Chamber reached the following important conclusion:

According to this Camera, a computer program "as such" is not excluded from patentability if the program, when executed or loaded on a computer, produces, or is capable of producing, a technical effect that goes beyond the normal physical interactions between the program and the computer in which it runs.

Today, there are around 15,000 patents for computer programs in Europe and around 75% of these are held by large non-European software companies.

On July 6, 2005 with an overwhelming majority of 648 out of 680 possible votes, the European Parliament completely rejected the software patent directive sending a clear message against the patentability of software "as such" in Europe.

As its name implies, the Patent Cooperation Treaty is an international patent cooperation agreement. In fact, it is essentially a treaty intended to streamline and co-operate the filing of patent applications, search and examination, as well as the disclosure of technical information contained in the applications. The Treaty does not provide for the granting of "international patents": the task and responsibility of granting patents rests exclusively with each of the patent offices of the countries where protection is sought or with the offices acting on behalf of those countries (designated offices). The PCT does not compete with the Paris Convention, but complements it. In reality, it is a special agreement entered into under the Paris Convention and is only open to States that are already party to that Convention.

Principal Objectives of the PCT

The main objective of the PCT is to simplify, make more efficient and more economical -from the point of view of the users of the patent system and the offices in charge of administering it- the procedure to request the protection of a patent of invention when you want to obtain that protection in several countries:

1. It establishes an international system before a single patent office (the “Receptive Office”) to submit a single application (the “international jurisdiction”), written in a single language, deploying its effects on each of the countries party to the Treaty that the applicant mentions (“designe”) in its request
2. Provides the form examination of the international application by a single patent office, the receiving office
3. Submit each international request to an international search that leads to the establishment of a report that quotes the relevant elements of the state of the technique (esentially, the published patent documents relating to previous inventions), which may need to be taken into account in order to determine whether the invention is patentable; this report is delivered first to the applicant and subsequently to the other interested parties
4. Provides the centralized international publication of international applications and international search reports, as well as their communication to designated offices; and
5. Provides for the possibility of submitting the application to an international preliminary examination, which provides a report to the offices to determine whether or not to grant a patent, as well as to the applicant, by issuing an opinion on the question of whether the invention whose protection is claimed responds to certain international patentability criteria
6. It establishes an international system in front of a single patent office (the “Receptive Office”) of the users of the patent system and the offices responsible for administering it—the procedure for requesting the protection of an invention patent when the protection is sought in several countries.
7. Provides the centralized international publication of international applications and international search reports, as well as their communication to designated offices; and
8. It provides for the possibility of submitting the application to an international preliminary examination, which provides a report to the offices to determine whether or not it is appropriate to grant a patent, as well as to the applicant, giving an opinion on the question of whether the invention whose protection is claimed responds to certain international patentability criteria.

Spain 2016

In Spain, the regulation of patents is contained in Law 24/2015, of July 24, on Patents, which came to replace the previous Law 11/1986, of March 20. Inventions that are new, involve an inventive step and are susceptible to industrial application are patentable, in all fields of technology, although certain exceptions are contained for reasons of legislative policy, such as procedures for cloning human beings, procedures modification of the germinal genetic identity of the human being, or the use of human embryos for industrial or commercial purposes.

Previously in Spain weak patents and strong patents coexisted, and the applicant could obtain his patent by two different procedures. However, currently the system is unique and gives rise to strong patents, since the Spanish Patent and Trademark Office (the public body in charge of granting them) carries out a substantive examination of compliance with the patentability requirements, based on a report on the status of patents. of the technique and a written opinion. In this way, Spanish patents increasingly converge towards a system similar to that of neighboring countries. In pursuit of greater agility in the concession, the process of oppositions by third parties is carried out during a period of six months once the patent has been granted.

Patent applications

Basic documents for filing patent applications

• Request duly filled and signed, in four so many.
• Check the fee. Original and 2 copies.
• Description of invention (by triplicate).
• Reivindications (per triplicate).
• Drawing (s) Technical (s) (for triplet), if applicable.
• Summary of the description of the invention (by triplet).

On average, the processing of a patent, from the moment the application is filed until the conclusion is issued, be it a grant or a refusal, is from 3 to 5 years.

The exclusive right granted by a patent is territorial.

How do I prepare an application? How is it presented?

A patent application consists of a descriptive memory of the invention, examples of how to carry it out, drawings (if applicable) and a claim chapter, which consists of the clauses that describe the invention, and which will be those that describe the object of the invention, and where the legal protection of the The right acquired by a patent or registration of industrial design and utility model, is an exclusive right of exploitation, determined by the claims ap

You must fill out a Patent Title Application form and write the description of the invention, for this, certain rules will be respected such as:

• Include a title of the invention that must be descriptive of what is or does the invention and be the same as that indicated in the application format.
• Technical field to which the invention refers.
• Cite technical information related to invention.
• In performing a previous technical search, you will have references that you may quote in the description.
• Detailed explanation of invention.
• The lines of all the leaves must be numbered at least 5 in 5.
• Figures have to be described briefly.
• Description of at least one way to carry out the invention.
• The leaves should be numbered consecutively and the numeral should be centered either at the top or bottom.
• The preamble of claims indicates that this is what is meant to be protected.
• The characteristic part indicates the technical specifications that make different what you want to protect to what already exists.
• The dependent claim mentions all the technical characteristics mentioned in the previous claim.
• The summary of the description of the invention will contain between 100 and 200 words.
• The drawings go without text. The charts, the diagrams of the stages of a procedure and the diagrams are considered as drawings. The figures are numbered consecutively.
• The leaves of the figures are numbered without following the order of the other annexes to the request.

The utility model is applicable to the improvement of an existing tool, machine or mechanical or electrical device. It does not apply to a chemical, biotechnological or process invention. The utility model protection is non-extendable for 10 years and is of a territorial nature, that is, it is only valid where it is granted. With the registration by industrial design, only the ornamental aspect of the object or drawing is protected, that is, its external form is protected, not its use, materials or utility. The protection for industrial design is non-extendable for 15 years. In this part, neither the title nor the description should contain technical information of the design.

Before entering any application for an invention, it is recommended that you carry out a technological search (independent of the invention application process), since one of the requirements to protect something is that it be new in the country and in any part of the world. If there is an equal or similar invention, the title or registration cannot be granted, however, it can be commercially exploited if said priority does not have current protection at the national level.

Patents by country