Understanding Patent Protection in Argentina
Patent protection is a critical aspect of intellectual property rights, particularly for inventors and businesses looking to safeguard their inventions. In Argentina, the patent landscape is governed by a robust legal framework, which includes the Argentine Patent Law No. 24481, international treaties like the Paris Convention and TRIPS, and regulations from the National Institute of Industrial Property (INPI). This article delves into the intricacies of patent protection in Argentina, providing insights into the patent application process, eligibility issues, enforcement, and recent developments in the field.
Forms of Patent Protection in Argentina
In Argentina, inventions can be protected through two main forms of intellectual property: invention patents and utility models. Invention patents offer a term of protection of 20 years from the date of application, covering both products and processes. On the other hand, utility models offer a term of protection of 10 years, focusing on demonstrating a “better use” of the object to be protected.
Scope of Patentable Inventions
The scope of patentable inventions in Argentina is defined by Article 6 of the Patent Law. It outlines several categories considered as non-inventions, which cannot be patented. These include discoveries, scientific theories, mathematical methods, literary and artistic works, software programs, methods for intellectual, commercial, and economic activities, and forms for presenting information. Furthermore, inventions contrary to public order, morality, environmental well-being, or the health and life of humans and animals are not patentable.
Patent Enforcement in Argentina
Patent enforcement in Argentina is governed by the Argentine Patent Law and the INPI regulations. Patent holders are empowered to prevent the unauthorized use, sale, manufacture, or importation of the patented product or any direct derivative of the patented process. In the event of patent infringement, the patent holder can seek legal redress through civil or criminal proceedings.
Challenges in the Pharmaceutical and Software Fields
The pharmaceutical and software fields face specific challenges in terms of patent protection in Argentina. In the pharmaceutical field, new formulations and compositions, as well as their methods of preparation, are generally considered obvious in light of the prior art. In the software field, computer programs are excluded from patentability under Art. 6 c) of the Patent Law in Argentina.
Examination Trends in Patent Applications
Argentina is not a Patent Cooperation Treaty (PCT) member country; therefore, patent applications should be filed within one year starting from the filing date of the priority application, in order to claim priority rights on the basis of the Paris Convention. To file a patent application in Argentina, there are specific requirements and deadlines to be aware of, including providing a duly signed Power of Attorney, submitting a complete patent application with a descriptive memory, an abstract and the claims, and declaring the priority number within a 3-month time limit.
Key Factors to Consider in Avoiding Objections from the Patent Office
To minimize potential hurdles with the patent office, it’s essential to take specific factors into account when crafting your patent claims. These include focusing on products or processes, avoiding submitting independent claims of different categories, and clearly defining the field of application in the preamble of your claims.
Appealing Office Decisions
In the INPI AR, the legal means for reviewing an administrative act is through various types of appeals, allowing applicants to challenge these acts. These include the Reconsideration appeal, Hierarchical appeal, Claim of illegitimity, Appeal before a higher authority, and Reconsideration appeal established by art 72 patent law.
Handling Oppositions and Re-examinations
In Argentina, there is no formal opposition process for patents. Instead, the procedure involves third-party observations. These observations can be submitted within sixty working days from the publication of the patent application, citing deficiencies in legal requirements for patent approval.
Invalidation and Inter Partes Reviews
Invalidation of granted patents can be filed as either a counter-claim by a defendant in a judicial infringement proceeding or as a direct claim in a judicial invalidation/nullity proceeding. Both types of proceedings are decided by judges on Federal Civil and Commercial Matters.
Patent-term Extensions
Article 35 of the Argentinian patent law establishes that the exclusive rights of a granted patent last 20 years counted from the filing date, which cannot be extended. Some inventors have argued in courts that this term should be extended in certain circumstances, for instance to compensate for unreasonable delays during the prosecution not attributable to the applicant, but so far judges have rejected such petitions.
Pendency Levels for the Last 12 Months
Currently, the time frame for the examiner at the INPI to initiate the substantive study varies according to the technological field, ranging from 3 to 5 years to receive the first official action. In areas such as pharmaceuticals, biotechnology and chemical compounds, there have been considerable delays for the final resolution of the patent application up to 10 years in some cases. However, it is relevant to note that INPI is taking significant steps to shorten these delays, including the recent hiring of 7 new examiners.