PATENTS AND UTILITY MODELS
Brief Explanation of the Legal System
An invention is any novel technical solution applied to an existing problem.
Patents are governed by law 24.481. Argentine legislation on patents applies equally to nationals and foreigners.
Inventions relating to products or processes shall be patentable provided that they meet three conditions stated by the Patent Law: I. Novelty; II. Inventive step; and III. industrial application.
Any human creation that allows the transformation of matter or energy for its use by man shall be considered an invention.
I) An invention shall be considered novel when it is not included in the state of the art, the latter being understood as the body of technical knowledge that has been made public before the date of application for the patent, or, as the case may be, of the priority recognized by means of an oral or written description, by exploitation or by any other means of dissemination or information in the country or abroad.
II) There shall be an inventive step when the creative process or its results are not obvious from the state of the art to a person ordinarily skilled in the relevant technical field.
III) There shall be industrial application when the effect of the invention leads to the obtaining of an industrial result or product, the term industrial being understood as including agriculture, forestry, livestock, fishing, mining, the processing industries themselves and services.
The following shall not be patentable:
a) IInventions whose exploitation in the territory of the Argentine Republic must be prevented in order to protect public order or morality, the health or life of persons or animals or to preserve plants or avoid serious damage to the environment;
b) The totality of biological and genetic material existing in nature or its replication, in the biological processes involved in animal, plant and human reproduction, including genetic processes relating to material capable of conducting its own duplication under normal and free conditions as it occurs in nature.
The following shall not be considered inventions for the purposes of the Argentine’s Patent Law:
a) Discoveries, scientific theories, and mathematical methods;
b) Literary or artistic works or any other aesthetic creation, as well as scientific works;
c) Plans, rules and methods for the exercise of intellectual activities, for games or for economic-commercial activities, as well as computer programs (software);
d) Ways of data presentation;
e) Methods of surgical, therapeutic, or diagnostic treatment applicable to the human body or to animals;
f) The juxtaposition of known inventions or mixtures of known products, their variation in shape, dimensions or materials, except in the case of their combination or fusion in such a way that they cannot function separately or that their characteristic qualities or functions are modified to obtain an industrial result that is not obvious to a person skilled in the art;
g) Any kind of live material or substances already existing in nature.
- Filing of the application: Any applicant wishing to obtain a patent or utility model must file the administrative application and the technical documents of the invention.
- Preliminary examination: The purpose of this examination is to verify that the information entered is complete and adequate. It also verifies that the abstract submitted correctly describes the invention to be patented. If the application meets the statutory requirements, it is admitted for publication.
- Publication: From this moment on, anyone can access the contents of the application and submit observations.
The observations made by third parties function as recommendations to be evaluated by the examiners, but cannot by themselves stop the process.
- Substantive examination: The law sets forth the payment of a fee for performing the substantial examination. Such payment can be made at the moment of filing the application or within eighteen months from the filing date.
The examiners carry out a search in national and international databases to determine whether the application complies with the three patentability requirements. In the event of observations by the examiner, the applicant must, within a certain period of time, submit the clarifications and arguments considered pertinent, or present the documentation or information requested.
- Final decision and duration: Once all the corresponding requirements have been met, the process will move towards the definitive granting of the patent. Patents are valid for a non-extendable term of twenty years from the filing date of the application and cannot be renewed.
In order to maintain in force the rights on the patent, maintenance fees must be paid annually, starting from the resolution of granting of the right, and throughout the remaining years of validity, according to the schedule indicated in the law of the matter, its regulations and the successive provisions of the National Institute of Industrial Property (Instituto Nacional de la Propiedad Intelectual)
Brief Explanation of the Legal System
Utility Models are also governed by law 24.481. Argentine legislation on patents and utility models applies to both nationals and foreigners on equal terms. Article 58 of the law establishes that the provisions on Patents of Invention that are not incompatible are applicable to the Utility Model.
Utility model certificates are granted in Argentina on any new arrangement or form obtained or incorporated in known tools, working instruments, utensils, devices or other objects that are used for practical work, insofar as they make for better performance of the operations for which they are intended.
The requirements for patentability of Utility Models on either products or mechanisms are the following:
1) Relative novelty;
2) Industrial application,
The fact that the proposed Utility Model lacks inventive step shall not constitute an impediment.
The utility model certificate will be granted for a non-renewable term of ten years from the filing of the application. In order to keep the patent rights in force, maintenance fees must be paid annually.
Our Firm offers assistance for the protection of patents and utility models worldwide through a large network of specialized foreign associates.
This allows us to follow our clients’ international expansion, designing with them strategies adapted to the pace of their development.