Patents

A patent is a right granted by the Government that enables the owner to exclusively explore a technology. Such right aims to protect innovations that enable the functional improvement of a product or process, or that settles a technical problem.

Invention Patents , can include almost all technology creations either of products or processes, including new and surprising application of known elements. The law excludes some patents from invention, as, for example, treatment methods. When a CREATION serves to settle in a technical form a technical problem, fulfilled the requirements established in the Law, we have an Invention Patent

Utility models , according to Law 9.279/96, are “the subject matter of practical use, or part of this, subject to industrial application, that presents a new format or disposition, involving an inventive act, that results in functional improvement in its use or manufacture”. And it is always an object, there is no utility model for processes. In general, the invention comes out directly from the production line. This kind of patent has a smaller degree of inventiveness and protects the creativity of a worker, the small inventor, the artisan, etc.

To grant and assure the right to exclusive use regarding an invention or an utility model, national legislation requires a patent to have the following requirements:

Invention: The technology must be capable of being employed in a manner to directly modify nature, in an economic activity, and cannot be an abstract concept, as theories, mathematical forms. There is an invention when there is a technical solution for a technical problem.

Novelty: The technology has not become accessible to public (state of the arts) in a way that a technician in the subject matter, having knowledge of such, could reproduce it.

Inventive Activity: The technology cannot be obvious for a technician in the subject matter, in a way that he is able to reproduce it based on already accessible knowledge. It cannot derive in an obvious manner from the state of the arts; for utility models, this requirement is considerable smaller and is named inventive act.

Industrial Use: The invention should be able to be produced or used in any field of industry. Or else, the invention, as described, should be subject to reproduction, its industrialization.

Enough Description: The patent should allow a technician in the subject matter to be able to reproduce the invention as described in its filing. The description report of the patent should be clear and comprehensible enough so a technician in the subject matter may reproduce it.

A patent can be claimed in name of the creator, his heirs or successors, the transferee or whomever the Law, labor agreement or service rendering agreement establishes that is owner of the patent.

The inventions need to be protected for more that, apparently, are simple. Many creators believe that his works do not bring anything new and do not duly protect his invention, leaving a valuable intangible asset that could be the difference between the failure and the success of his business. Simple inventions, as of the known plastic recipient in cradle format to wash rice, brought fortunes to the creators that made such apparent small inventions excellent business for whomever could industrialize the inventions. With a license agreement, inventions may pay their creators through negotiated royalties.

• Whatever is contrary to morals, good customs and safety, public order and health
• Substances, materials, mixtures or products of whatever species, as well as the changes of their physical-chemical properties and respective processes for obtaining or modifying, when resulting from transformation of the atomic nucleus; and all or part of the living beings, except the transgenic microorganisms that fulfill the three patenting requirements – novelty, inventive activity and industrial application – and that are not mere discovery.
• Transgenic microorganisms, as mentioned by law 9279/96, are organisms, except all or part of plants or animals that express, by direct human intervention in its genetic composition, a characteristic that normally is not achievable by the species in natural conditions.

What is not considered neither an invention nor an utility model, or else:

• discoveries, scientific theories and mathematical methods
• purely abstract conceptions
• schemes, plans, commercial, accounting, financial, educative, publicity, raffle and inspection principles or methods
• literary, architectural, artistic and scientific works or any aesthetic creation
• computer programs per se
• information presentation
• game rules
• surgery techniques and methods, as well as therapeutic or diagnose methods, for application in the human or animal body; and in all or part of living beings and biologic materials found in nature, or even if isolated from nature, including the genome or the germplasm of any natural being and natural biologic processes

The term can be of 20 years for inventions and 15 years for utility models.

It shall be individual per country, with or without priority *. In case of countries that are part of the European Community, the invention can be required and validated to all Europe. It is also possible to extend a patent´s protection through the PCT (Patent Cooperation Treaty), that is an international patent filing that facilitates the requirement and Grant in all countries that signed and ratified the treaty. One of the advantages of protecting a patent through PCT is that as the patent publishing is international, the content is spread on to the world, which can be an effective means for advertising and search of potential interest parties in obtaining a license for use of the patent.

* According to the Paris Convention, signed by Brazil and other 172 countries, the right to priority for trademarks requests in these countries is 6 (six) months from the presentation of the first requirement in one of the signing countries

A patent may terminate and its content shall be reverted to public domain, when of:

• termination – after 20 years for inventions or 15 years for utility models
• waiver of its owner, except for third party rights
• decrepitude, which occurs if the INPI itself or by request of an interested party, after two years after the Grant of the first compulsory license, such time has not been enough to stop or remedy abuse, except if there are Just reasons or if when of the decrepitude requirement or its autonomous declaration by the INPI the patent exploitation has not been initiated
• lack of payment of the annual FEE in the legal timing
• if the owner of the patent resides abroad and not maintain a resident in the Country duly empowered to represent him administratively, judicially or receiving summons