Brief Explanation of the Legal System
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 activity; and III. industrial application.
Any human creation that permits material or energy to be transformed for exploitation by man shall be considered an invention.
- I) Any invention that is not included in the state or the art shall likewise be considered novel. The state or the art shall be understood to be the whole body or technical knowledge that has been made public prior to the filing date or the patent application or the date or recognized priority if any, by oral or written description, by exploitation or by any other means or dissemination or communication or information, either within the country or abroad.
- II) There shall be an inventive step where the creative process or the results thereof cannot readily be deduced by a person or average skill in the technical field concerned.
- III) There shall be industrial applicability where the subject matter or the invention causes an industrial result or product to be obtained, industry being understood as including agriculture, forestry, livestock breeding, fisheries, mining, processing industries in the strict sense and services.
The following shall not be patentable:
- a) Inventions the exploitation of which on the territory of the Argentine Republic is to be prevented in the interest of the public good or morality, the health or life of persons or animals, the conservation of plants or the avoidance of serious damage to the environment;
- b) All biological and genetic material existing in nature or derived therefrom in biological processes associated with animal, plant and human reproduction, including genetic processes applied to the said material that are capable or bringing about the normal, free duplication thereof in the same way as 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; scientific works;
- c) Schemes, rules or methods for performing intellectual activities, playing games or engaging in economic and business activities; computer programs (software);
- d) Forms 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, changes in the shape, dimensions or constituent materials thereof, except in the case of combination or merging in such a way that the elements are unable to function separately or where the characteristic qualities or functions thereof are so altered as to produce an industrial result that is not obvious to a person skilled in the field concerned;
- 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 an administrative application and the specifications of the invention. Where a patent is applied for after having been applied for in other countries, it shall be accorded as its priority date the date on which the first patent application was filed, provided that no more than a year has elapsed following that original filing.
According to article 14, the right of priority shall be claimed in the patent application. A Spsnish translation of the priority document signed by an Argentine Sworn Translator shall be filed together with the application or within three months following the application if said application is in another language. No legalization or filing of the priority document is required. The priority document might be requested by the Examiner during the Substantive Examination.
For priority to be recognized, the following requirements have in addition to be met:
- a) The scope of the application filed in the Argentine Republic must not be broader than that claimed in the foreign application; if it is, the priority shall be partial only and related to the foreign application;
- b) There must be reciprocity in the country of the first application.
The National Patent Administration shall conduct a preliminary examination of the documentation, and may ask to have points specified or clarified where it considers this necessary, or omissions to be made good. Where the applicant fails to comply with such a request within a period of 180 days, the application shall be considered abandoned. The purpose of this examination is to verify if the documents submitted meet the formalities. If the application meets the statutory requirements, it is admitted for publication. In case that the application does not receive observations or they are replied and satisfactory accepted, the application is admitted for publication.
Publication – Third Party Observations against Patent Pending
A patent pending will be kept confidential until publication thereof. The law provides that the application shall be published in the Official Gazette up to 18 months from the filing date. However, it may request early publication of the pending application by paying an additional fee, thus obtaining a publication of the application immediately after a year taken from the filing date. As of the date of publication, the law defines a window period of 60 working days for the filing of observations by any third party at interest, including the lack or shortcoming of any statutory requirements for the granting thereof. All such observations will be included in the examiner’s substantial examination report, except that they are evidently inadmissible and are so declared.
Payment of Fee – Substantial Examination
The law sets forth the payment of a fee for performing the substantial examination. Such payment must be made within 18 months as from the application filing date. Following payment of the appropriate fee, the substantial examination is carried out within the next 180 days, and consists of a review of the basic requirements for patentability of the invention or protection thereof as utility model.
Substantive Examination – Observations – Notice of Objections
After payment of the fee laid down in the implementing decree, having the preliminary examination admitted and the application published, the National Patent Administration shall undertake a Substantive Examination which consists on analysing technically the application and carry on the search of antecedents, to verify compliance with the requirement of novelty, inventive step and industrial applicability, and also the other legal requirements to be granted.
If it corresponds, the National Patent Administration may include within the substantive examination the observations filed by third parties.
If there are any objections or observations by the examiners, the Law provides a time period of 60 running days from the date of notice of objections, during which the applicant must submit any clarifications or arguments that he/she may deem appropriate, or furnish the documents or information required.
If the answer is accepted, the patent will be granted. If it is not admitted, the application will get a Final Official Action, in which case the law stipulates a period of 30 working days from the date of notice of objections, during which the applicant must submit any clarifications or arguments that he/she may deem appropriate, or furnish the documents or information required.
If the new answer to the final observation is admitted, the patent will be granted. If it is not admitted, it will be denied. If the application is denied, it is possible to appeal before court or file a petition for administrative reconsideration with secondary appeal before a higher administrative authority.
Argentine system allows the applicant to submit the result of foreign substantial examination, in order to enhance granting or provide greater support to the scope of protection intended to be considered allowable.
Patent Grant – Duration
After approval of any appropriate requirements, the process proceeds to the grant of the patent or utility model. Patent rights are valid for a non-renewable period of 20 years from the application filing date and cannot be renewed.
Following approval of the Patent or Utility Model, the applicant should request the issuance of the appropriate certificate.
Annual Fee to Maintain Patent Rights
To maintain patent and utility model rights in effect, the patentee must pay an annual maintenance fee following the date of grant, and for each of the years of the effective period of the grant, according to the scheme set forth in the Law, its regulatory rules and any subsequent regulations established by the Argentine Industrial Property Institute (INPI).
Utility models are governed by Law 24.481, that is the same which applies for Patents. Argentine legislation on Utility Models applies equally to nationals and foreigners.
Essential Requirements and Subject Matter Protected
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) Novelty
- 2) Industrial character
It shall not constitute an impediment the fact that they lack of inventive activity.
The utility model certificate shall have a non-renewable term of 10 years, counted from the filing date of the application, and shall be subject to the payment of the fees laid down in the and its regulation Decree.
Utility Model Prosecution – Priority claiming and compulsory licensing
Article 58 of the Law provides that the norms about patents which are not incompatible with the utility model are applicable to the same. Accordingly, for additional information concerning prosecution, priority claiming and compulsory licensing you may refer to the explanation in this site concerning the patent system.