Patents are technological knowledge applied to production.
The modern economy is based on knowledge, an intangible asset that has come to occupy an important place in the lives of people, companies and countries. In the globalized world, the paradigm is instant communication and the absence of borders for the diffusion of knowledge. In this context, the only way of transforming knowledge, in principle an asset in the public domain, into a private asset, even if only for a limited time, is through the use of intellectual property.
A patent is a property right with a term of validity granted by the State, which assigns to the holder the right to prevent third parties from exploiting its creation without prior authorization. A patent is territorial, which is to say, it is valid only in the country where it is filed and granted. If the owner is interested in exploiting it in other countries, the document should be extended to the countries of interest, within a pre-established term of 12 months counted from the date of filing.
There are two kinds of patents. A patent, which is valid for 20 years from the date of request, and a petty patent which is valid for 15 years from the date of request. At the end of its term of validity, the patent falls into the public domain, and may be used by anyone.
The BPO – Brazilian Patent and Trademark Office has created over 10 resolutions that have shortened the time for the examination of patent applications to around 2 years, if there are no technical-administrative complications during the process.
An example of a priority examination scheme is the Green Patent application program which, due to its success, has been transformed into a permanent program. In addition to Green Technologies, priority is given to those concerning: Ageing, Serious Illness, Unfair Competition, PPH (Patent Prosecution Highway) with several countries, BR Priority, Health Products, Micro and Small Companies, and ICTs, among others.
Moreover, regarding protection, there is an option of registering the ornamental form (design) of an object or an ornamental pattern, through an industrial design, provided that it presents novelty, originality and is susceptible to industrial manufacture. The technical design has a validity of 10 years, and may be extended, having a maximum validity of 25 years.
There are limitations in the legislation regarding what can or cannot be patented. Articles 10 and 18 of Industrial Property Law no. 9.279, list the following technologies as not being susceptible to patenting:
Art. 10. The following are not considered to be patent inventions or petty patents:
- discoveries, scientific theories or mathematical methods;
- purely abstract conceptions;
- layouts, plans, commercial, accounting, educational, publicity, gambling or inspecting principles or methods;
- literary, architectural, artistic or scientific works or any aesthetic creation;
- computer programs in themselves;
- the presentation of information;
- rules of games;
- operating or surgical techniques or methods, or therapeutic or diagnostic methods, for application to the human or animal body; and
- all or part of natural living beings and biological material found in nature, or isolated therefrom, including genomes or germoplasms of any natural living being or natural biological processes.
Art. 18. The following are not patentable:
- anything contrary to public morality, good custom or health and safety;
- substances, materials, mixtures, elements or products of any kind, or the modification of their physical-chemical properties and the respective processes of obtention or modification resulting from transformations of the atomic nucleus; and
- all or part of living beings, except transgenic microorganisms that fulfill the three requirements of patentability – novelty, nonobviousness and utility – foreseen in article 8º and which are not mere discoveries.
VILAGE possesses a specialist technical team to advise you and draw up your patent application with clarity and descriptive sufficiency in the most representative technological segments for filing patents before the BPO.
The “Green Patents” program, which was started in April 2012, was designed to encourage sustainable innovation, and seeks to accelerate the examination of patent applications related to clean technologies.
The granting of an application considered to be a “green patent” occurs within a maximum of 2 years.
The BPO – Brazilian Patent and Trademark Office – granted the first Green Patent in Brazil on 12/03/2013. The patent’s technical report and protocol were produced by VILAGE Marcas e Patentes, which also provided consulting services regarding the adaptation of the process within the Green Patents program, in accordance with the requirements of the BPO.
What are the advantages of requesting a patent for a product/process?
A patent registration confers on its holder exclusive rights of use, commercialization and licensing of the product/process protected. This privilege also prevents third parties from using, importing or commercializing the invention without the authorization of the owner during the period of the patent’s validity, which constitutes an important tool for combating piracy and unfair competition. There is also the reward for the inventor for the innovation, stimulating the development of new inventions, without his/her having the fruits of their research usurped by third parties.
What are the main stages of registering a patent?
The main stages are:
- Consolidating the idea in technology – ideas are not patentable;
- Filing the patent application with the BPO – Brazilian Patent and Trademark Office – and submitting the technical report, containing the whole content of the invention to be protected.
- Publication of the application in the RPI – Revista da Industrial Property (Industrial Property Gazette) – for the cognizance of society;
- Annuities – after the 24th month, the applicant must pay annuities;
- Request for the technical examination – a requirement in order that the application be analyzed;
- Granting of the patent application – the examiner’s decision accepting the application; which is to say, the application fulfilled the pre-requirements of patentability that would otherwise prevent the granting of the patent;
- Granting of the Letters Patent – issuance of the Registration Certificate, on payment of the corresponding fee.
Do I need a prototype to request a patent?
A prototype of an invention is not necessary to request a patent. However, it is necessary to produce a report that correctly and successfully describes, in full technical detail, all the stages, requirements and functions of the invention.
I have already placed my product on the market. Do I still need to request a patent for it?
After placing the product on the market, it is necessary to verify if the date is still within what is called, in Brazil, the Grace Period, which constitutes a term of 12 months for requesting patent protection, counted from the date of the first publication of the invention. 12 months after publication, the invention enters the public domain, and may be used by anyone interested in the product.
If I make an alteration to my product/process, do I need to submit a new patent?
It is necessary to evaluate, firstly, if the alteration made possesses sufficient characteristics to constitute a new patent (the alteration of the material or dimensions, for example, do not always constitute an inventive act sufficient to require a new patent application). Depending on the extent of the alteration, it is possible to request a petty patent or a certificate of amendment (associated with an existing patent).
If I were to export my product, would I need to patent it in the intended country also?
It is essential to patent the product to be exported in the intended country, in order to avoid problems with customs, piracy and unfair competition in this country as well. The registration of a patent is territorial, which is to say, valid only in the country where it was granted. So to possess the same rights granted in Brazil, it is necessary to request protection in every country of interest abroad.
Can I register a global patent with a single registration?
It is not possible to register a global patent since the granting has territorial validity, as foreseen by law (national and international). In order to enforce a right, it is necessary to have a patent granted in every country of interest.
I saw a product outside the country that does not exist in Brazil, can I patent the product?
Patent existing products is not ethical, as this procedure may incur legal proceedings for unfair competition. A patent registration for already existing products/processes is considered “weak”, subject to annulment, since, by not having its protection required in Brazil previously and within the terms established by law, this invention is already in the public domain here, that is, the company is already allowed to use this invention without the need for registration or payment to the patent holder abroad.
Do you have any further doubts about filing patents?
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