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  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Patents

Nature of right

Argentina

Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

Australia

A patent is a statutory right that must be applied for, and may be granted following examination. An owner of a granted patent for a product has exclusive rights to:

  • Make, hire, sell or otherwise dispose of the product
  • Offer to make, sell, hire or otherwise dispose of the product
  • Use or import the product
  • Keep the product for the purpose of doing any of the above

An owner of a granted patent that is a method or process has exclusive rights to use the method or process, or exercise any of the above exclusive rights in respect of a product resulting from such use.

The owner also has an exclusive right to authorize another person to exercise the above rights.

There are two types of patents: standard patents and innovation patents.

To be patentable, an invention must be a manner of manufacture, novel, involve an inventive step (or innovative step for innovation patents), useful and not have been secretly used.

Austria

Patents are granted on inventions which are novel, which, having regard to the state of the art, are not obvious to a person skilled in the art, and which can be applied in the industry.

The patent owner has an exclusive right to produce, put into circulation, offer for sale and use the claimed invention.

Belgium

A patent shall confer on its owner the right to prevent all third parties not having his consent:

  • From making, offering, putting on the market or using a product which is the subject matter of the patent, or importing or stocking the product for those purposes
  • From using a process which is the subject matter of the patent or, when the third party knows, or it is obvious in the circumstances, that the use of the process is prohibited without the consent of the owner of the patent, from offering the process for use in Belgian territory
  • From offering, putting on the market, using, or importing or stocking for those purposes the product obtained directly by a process which is the subject matter of the patent

An invention is eligible for patent protection if it is:

  • New
  • Inventive
  • Capable of industrial application

An invention is new if it does not fall within the relevant state of the art. It is inventive if it would not be obvious to a skilled technician. Finally, the term industrial application is broadly construed and includes agriculture.

The novelty of an invention is not jeopardized if the invention was disclosed to the public in the course of six months prior to the filing of the application and it is due directly or indirectly to:

  • An obvious abuse in relation to the applicant
  • The invention being shown at an exhibition organized by the public authorities or an official international exhibition

In the latter case, the applicant shall declare, when submitting his or her application, that the invention was actually disclosed during an exhibition and furnish a relevant certificate

In order to benefit from the priority right, registrations must be carried out before the end of the 13th month following the date of the first registration (priority date). In addition, the applicant must make a "statement of priority" when applying.

Any person who, prior to the patent application or the priority date, used or possessed the patented invention in good faith on Belgian territory is entitled to continue the exploitation of the invention, notwithstanding the existence of a patent granted to a third party.

Brazil

Patent protection may be granted to:

  • Inventions that present novelty, inventive activity and industrial use and
  • Utility models if the objects (in whole or in part) are for practical use, have industrial use, present a new format or pattern that involves an inventive act and results in a functional upgrade in its use of manufacture

Patents grant the right to prevent third parties to produce, use, offer for sale, sell or import with such purposes the claimed invention.

Canada

Patents grant the right to exclude others from making, constructing, using and selling to others to use the claimed invention.

Chile

A patent is an exclusive right granted by the State for the protection of an invention, which provides exclusive rights that will allow you to use and exploit your invention and prevent third parties from using it without your consent.

China

Patents are a statutory right granted for protection of invention-creations include three categories:

  • Inventions
  • Utility models
  • Designs

Patents grant the rights to exclude others, for commercial purposes, from:

  • Manufacturing, using, offering to sell, selling or importing the patented goods
  • Using the patented method, or using, offering to sell, selling or importing products made directly through use of the patented method
  • Manufacturing, offering to sell, selling or importing the goods covered by a design patent

Colombia

Resolution 486 of 2000 states that a patent is a right granted to an inventor to exclusively exploit the claimed invention, preventing any third party from manufacturing, selling or using such invention without the inventor's prior consent. Any legal or natural person may file for a patent and if different people made the same invention jointly, the right to the patent will be common to all people involved.

Additionally, an invention is an innovative object, technic or procedure. For an invention to be patented it must:

  • Be innovative, meaning that the invention is not known, verbally or in writing, exploited or commercialized within the current state of the art before the request is filed
  • Have a certain level of inventiveness, meaning that the invention is not obvious or clearly derived from the current state of art
  • Have an industrial application, meaning the invention shall be used in any industry

Utility models

According to article 81 of Resolution 486, a utility of model

"is any new shape, configuration or arrangement of components of any device, tool, implement, mechanism or other object, or any part thereof, that makes for improved or different operation, use or manufacture of the object incorporating on it, or which endows it with any usefulness, advantage or technical effect that it did not have previously..."

Patents protect utility models, which means that the provisions for patents of inventions are applicable to them. In this regard, the State grants the inventor the right to exclusively exploit of the utility model.

Czech Republic

Patents grant the exclusive right to use the invention, to authorize others to use the invention or to assign the patent to others.

Denmark

Statutory right granted consistent with mandate in the Danish Patent Act. The invention has to be new and differ significantly from what was known at the filing date of the patent application.

Patent right owners are granted the exclusive right to exploit the invention commercially.

Utility models can be considered as an alternative to protection of industrial rights.

Finland

Patent protection is offered for inventions that are new and industrially applicable. It is required that the invention significantly differs from what was known at the date of filing.

France

Patents are an industrial property title relating to an invention and granting to its owner an exclusive right of exploitation/use.

The patent owner may, at any time, waive the patent or file a request for limitation of said patent.

Germany

Patent rights in Germany are available for technical inventions in two different aspects:

  • As a patent which is examined by the German Patent and Trademark Office or the European Patent Office before grant
  • As a utility model that is not specifically examined before registration

Irrespective of whether the patent is filed with the German Patent and Trademark Office or the European Patent Office, the patent is handled as a national patent and therefore only grants protection for Germany (if Germany is one of the designated contracting states of the respective European patent). The same teaching can only be claimed in one patent, since "double patenting" of the same teaching is permitted.

The scope of protection is basically the same for both rights, with the exception that a patent can cover an apparatus and a method whereas a utility model only covers apparatus claims but not methods. Further, differences between patents and utility models lie mainly in their duration and in the ways to attack their validity.

In regards to products, the patent and the utility models both grant the right to exclude third parties from making, offering for sale, putting on the market, using, importing or possessing products that include the claimed invention. In regards to methods, the patent grants the right to exclude third parties from applying or offering a protected method, but also to offer and market products directly resulting from such protected methods (eg, a product manufactured in an infringing production process).

Hong Kong

A patent gives the inventor an exclusive right to use his invention. A patent protects the invention by giving the inventor a legal right to prevent others from manufacturing, using, selling or importing the patented invention.

Hungary

An invention is patentable if it is capable of industrial application, is new and involves an inventive step. An invention is new if it does not pertain to the state of technical knowledge. An inventive step shall mean an activity that is nonobvious to an expert in the view of the state of technical knowledge. An invention is deemed susceptible of industrial application if it can be produced or used in any branch of industry or agriculture.

Registration is required. Patent protection commences upon publication of the application, with retroactive effect to the date of application.

The patent holder has the exclusive right to exploit the invention. In the frame of this, the patent holder may prohibit, among others:

  • To manufacture, use, distribute, offer to distribute, store, or import the patented product
  • To use the patented method, or to offer it for use
  • To manufacture, use, distribute, offer to distribute, store, import, the product created with the patented method

In relation to the moral rights, the inventor has the exclusive right to publish its invention before the filing of the patent application. The inventor is also entitled to be informed of the invention's documentation as the inventor thereof.

India

Patents are a statutory right granted under the Patents Act 1970 (Patents Act), to an "invention." A patent granted under the Patents Act confers upon the patentee, the following rights:

  • Product patents – the exclusive right to prevent third parties from the act of making, using, offering for sale, selling or importing for those purposes that product in India, without the consent of the patentee
  • Process patents – the exclusive right to prevent third parties from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India

Indonesia

Patent may be granted for an invention that is novel, involves inventive steps and can be applied in an industry. Simple patent may be granted for an invention that is novel, development result from an existing process or product, and can be applied in an industry. An inventor may be conferred either a patent (paten) or a simple patent (paten sederhana) depending on the nature of the invention.

Ireland

Patents are a statutory right in Ireland.

The following conditions must be met in order to obtain patent protection for an invention:

  • It must be new
  • It must be capable of industrial application
  • It must involve an inventive step (being an invention that is not obvious to a person skilled in the particular area of technology, having regard to the state of the art) and
  • It must not be the subject of an excluded category (including discoveries, scientific theories, mathematical methods, aesthetic creations, business method, computer programs and the presentation of information)

In general, it is not possible to get a patent for software. However, there may be scope to obtain patent protection for an invention requiring use of software if the software used provides a technical solution to a technical problem. 

The owner of a patent has exclusive rights to exploit the patented invention. Any person who makes, uses, sells or imports the patented invention must first obtain the consent of the patent holder.

The protection granted under Irish patent law is territorial. A patent granting protection in Ireland can be obtained from the Irish Patents Office, through the European Patent Convention (a centralised process for granting a suite of independent, nationally enforceable patents in Europe) or under the Patent Co-Operation Treaty.

Patents are a statutory right in Ireland.

The following conditions must be met in order to obtain patent protection for an invention:

  • It must be new
  • It must be capable of industrial application
  • It must involve an inventive step (being an invention that is not obvious to a person skilled in the particular area of technology, having regard to the state of the art) and
  • It must not be the subject of an excluded category (including discoveries, scientific theories, mathematical methods, aesthetic creations, business method, computer programs and the presentation of information)

In general, it is not possible to get a patent for software. However, there may be scope to obtain patent protection for an invention requiring use of software if the software used provides a technical solution to a technical problem. 

The owner of a patent has exclusive rights to exploit the patented invention. Any person who makes, uses, sells or imports the patented invention must first obtain the consent of the patent holder.

The protection granted under Irish patent law is territorial. A patent granting protection in Ireland can be obtained from the Irish Patents Office, through the European Patent Convention (a centralised process for granting a suite of independent, nationally enforceable patents in Europe) or under the Patent Co-Operation Treaty.

Israel

Protection of patents owners for the duration of the right including the following rights:

  • In respect of an invention that is a product – any act that is one of the following: production, use, offer for sale, sale, or import for purposes of one of the aforesaid acts
  • In respect of an invention that is a process – use of the process

A patent holder is entitled to prevent any third party from exploiting the invention for which the patent has been granted without his permission, either in the manner defined in the claims or in a similar manner.

Italy

Patent protection is available to inventions that are deemed to be new, to involve an inventive step and are suitable for industrial application.

From the publication of the patent application, the patent owner has the exclusive right to forbid third parties from producing, using, trading in, selling or importing the product (should the invention be a product) or applying the method, or using, trading in, selling or importing the product that is directly obtained from the method (should the invention be a method).

Novel solutions capable to significantly improve existing products may be awarded protection as utility models.

Japan

Japanese law protects inventions (the highly advanced creation of technical ideas utilizing the laws of nature), utility models (the creation of technical ideas utilizing the laws of nature), and designs (shapes, patterns or colors, or any combination of these of an article having visual aesthetic attributes), and plant varieties.

A patent holder has the exclusive right to produce, use, transfer, sell, lease, offer for sale or lease, export or import the patented invention for business.

For utility and design patents and utility model rights, registration with the Japan Patent Office is required.

Luxembourg

An invention is eligible for patent protection if it satisfies three conditions:

  • It is new
    • An invention is new if it does not fall within the relevant state of the art, meaning everything made available to the public before the date of filing of the patent application.

The novelty of an invention is not jeopardized if the invention was disclosed to the public in the course of 6 months prior to the filing of the application and it is due directly or indirectly to (a) an obvious abuse in relation to the applicant; or (b) the invention has been showed at an exhibition organized by the public authorities or an official international exhibition. In the latter case, the applicant shall declare, when submitting his application, that the invention was actually disclosed during an exhibition and furnish a relevant certificate.

  • Inventive 
    • It is inventive if it, in regard to the state of the art, is not obvious to a person skilled in the art.
  • Capable of industrial application
    • Finally, the term industrial application must be understood very widely as being able to be made or used in any kind of industry, including agriculture.

Patent protection requires the successful completion of a patent application process.

  • A priority right is granted by the person who has filed an application for a patent for the same invention. In order to benefit from this priority right, registrations must be carried out before the end of the 12th month following the date of filing of the first application. In addition, the applicant must make a "statement of priority" when applying.
  • Such priority right provides that the date of priority shall be the date of filing the application.
  • Any person who, in good faith, prior to the patent application or the priority date, possessed in Luxembourg a justified right in the prior use of the patented invention is entitled to continue the exploitation of the invention, for personal use, notwithstanding the existence of a patent granted to a third party.

The patent shall confer on its owner the right to prevent all third parties not having his or her consent:

  • From making, offering, putting on the market or using a product that is the subject matter of the patent, or importing or stocking the product for those purposes
  • From using a process that is the subject matter of the patent or from offering the process for use in Luxembourg territory, or when the third party knows, or it is obvious in the circumstances, that the use of offering of the process is prohibited without the consent of the owner of the patent
  • From offering, putting on the market, using, or importing or stocking for those purposes the product obtained directly by a process that is the subject matter of the patent
  • Supplying or offering to supply, in Luxembourg territory, a person other than a person entitled to exploit the patented invention, the means of implementing, in that territory, the invention with respect to an essential element thereof where the third party knows, or it is obvious from the circumstances, that such means are suited and intended for putting the invention into effect

Mexico

Regarding inventions, the right granted is a patent; regarding utility models and industrials designs, the right granted is a registration.

Netherlands

Subject to the provisions of Articles 53 to 60 of the Dutch Patent Act of 1995, a patent shall confer on its owner the exclusive right:

  • To make, use, put on the market or resell, hire out or deliver the patented product, or otherwise deal in for his or her business, or to offer, import or stock it for any of those purposes
  • To use the patented process in or for his or her business or to use, put on the market, or resell, hire out or deliver the product obtained directly as a result of the use of the patented process, or otherwise deal with or for his or her business, or to offer, import or stock it for any of those purposes

An invention is eligible for patent protection if it satisfies three conditions:

  • It is new (novel)
    • An invention is new (novel) if that invention was not already known in the state of the art
  • Inventive
    • It is inventive if it would not be obvious to a skilled person based on the state of the art
  • Susceptible of industrial application
    • Finally, the term industrial application must be understood very broadly and can include agriculture

The novelty of an invention is not jeopardized if the invention was disclosed to the public within six months prior to the filing of the application and it is due directly or indirectly to:

  • An obvious abuse in relation to the applicant
  • The invention has been shown at an exhibition organized by the public authorities or an official international exhibition

In order to benefit from the priority right, registrations must be carried out during the 12 months from the filing date of the application (priority date).

Any person who, in the Netherlands or Netherlands Antilles or, in the case of a European patent, in the Netherlands, has already manufactured or applied or commenced implementation of his or her intention to manufacture or apply, in or for his or her business, the subject matter of a patent application filed by another on the filing date thereof or, if the applicant has a right of priority under Article 9(1) or Article 87 of the European Patent Convention, on the filing date of the priority application, shall, notwithstanding the patent, continue to have the exploitation right(s) (as mentioned in the Dutch Patent Act), this right being based on prior use, unless his or her knowledge was obtained from a matter already made or applied by the applicant or from the applicant’s descriptions, drawings or models.

New Zealand

Patents are a registered right that protects inventions that are a "manner of manufacture" (including chemical compounds, products, systems, processes and methods), are novel, involve an inventive step and are useful.

Patents grant the right to exclude others from making, hiring, using, selling, offering for sale or hire, offering to make, and importing the claimed invention.

Norway

Upon registration, patent protection is available for reproducible inventions of a technical character with a technical effect. The inventions have to be "new," be industrially applicable, and have sufficient "inventive step."

Patent right owners are granted the exclusive right to exploit the invention commercially.

Poland

An invention is patentable in Poland if it is novel, has an inventive step and is industrially applicable. There are certain categories of inventions that cannot be patented, such as discoveries, scientific theories and mathematical methods, schemes, rules and methods concerning mental or economic activity, as well as games and computer programs. Additionally, some technical solutions are excluded from patent protection for ethical reasons.

Under Polish law, technical solutions may also be protected as utility models. In order to be protected as a utility model, a technical solution should be new, useful, and refer to the shape, structure or durable assembly of an object.

A patent application may be converted into a utility model application (but not vice versa).

Patents and protection rights to utility models are both granted by the Polish Patent Office.

A patent and a protection right to a utility model give the holder the exclusive right to use them in a commercial and professional way in the territory of Poland. They forbid any third party from making, using, offering, marketing or importing a product incorporating the invention or the technical solution that is the subject of the right to a utility model. In the case of a patent, third parties are prohibited from applying the process that is the subject of the patented invention and from using, offering, marketing or importing products obtained by means of this process.

Portugal

Patent rights cover new inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

An invention shall be considered new if it does not form part of the state of the art, which comprises everything, inside or outside the country, made available to the public by means of a written or oral description, by use, or in any other way, before the date of filling of the patent application.

An invention shall be considered involving an inventive step if it is not obvious to a person skilled in the art.

An invention shall be considered susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

A national patent confers on its owner the exclusive right to exploit the patented invention in Portuguese territory.

Romania

Patents are a statutory right. Patents grant the right to exclude others from making, using, selling, offering for sale and importing the claimed invention.

Russia

Patent protection is available for inventions that are deemed to be new, not obvious, and suitable for application in the industrial field.

From the grant of the patent, the patent owner has the exclusive right to forbid third parties from producing, using, trading in, selling or importing the product (should the invention be a product) or applying the method, or using, trading in, selling or importing the product that is directly obtained from the method (should the invention be a method).

There are separate legal provisions on protection of utility models and industrial designs (which have the basic regime of legal protection similar to that granted to inventions, but with certain distinctions).

Saudi Arabia

A patent may be issued on an invention, if it involves an inventive step, and is capable of industrial application. The invention may be a product, process or related to either.

Applications for registration of patents are made to KACST.

Singapore

A patent is a right granted to the owner of an invention that prevents others from making, using, importing or selling the invention without his permission. For an invention to be patentable, it must be new, involve an inventive step and be capable of industrial application. 

Slovak Republic

The owner of a patent has the exclusive right to use the invention, to grant consent with the use of the invention, to transfer the patent to another person or to pledge the patent as collateral.

South Korea

Patents are examined and granted by the Korean Intellectual Property Office (KIPO). A patent may be granted for a new and industrially applicable invention. The industrial applicability requirement is often discussed when an invention is directed to the treatment of humans or involve the human body as an indispensable element, such as surgical methods and methods of treatment of humans.

Inventions that are likely to injure public order, morality or public health are unpatentable in Korea.

Further, under the PA, technical information made public through the Internet may be also regarded as prior art.

Spain

In Spain, both inventions and procedures are patentable. The three main requirements to obtain a patent are that the invention must:

  • Be new, ie, novel
  • Involve an inventive step
  • Be capable of industrial application

Scientific discoveries or theories, mathematical methods, literary, scientific, artistic works and any other aesthetic creations, among others, are not considered patentable. Neither is it possible to obtain a patent for an invention if it is a new animal or plant variety, a method of medical treatment or diagnosis, a software item, or inventions whose commercial exploitation is contrary to public order or morality.

Sweden

Upon registration, patent protection is available for inventions that are susceptible of industrial application, provided that the invention is new and significantly differs from what was known at the filing date of the patent application.

Patent right owners are granted the exclusive right to exploit the invention commercially.

Switzerland

Patents protect technical inventions.

Patents grant the right to exclude others from using the invention commercially, in particular for manufacturing, storing, offering, placing on the market, importing, exporting and carrying in transit.

Taiwan

A patentee has an exclusive right to prevent others from exploiting the patent without the patentee's consent. Exploiting means the acts of manufacturing, offering for sale, selling, using or importing the products/services containing the patent.

Ukraine

Patents in Ukraine protect exclusive rights in inventions and utility models. The products and/or processes or new application of the known product or process may obtain protection as inventions and/or utility models.

Ukrainian laws stipulate the following patentability requirements for objects eligible for patenting:

  • Inventions: including novelty, inventive step and industrial applicability
  • Utility models: including novelty and industrial applicability

The rights to inventions and utility models are subject to registration with the Ukrainian IP office in order to be protected in Ukraine.

The owner of the patent to invention or utility model has the exclusive right to prohibit the third parties from producing, using, selling or importing the product or applying the method that are protected with the patent.

United Arab Emirates

When it comes to product patent, the right to exploitation includes the manufacture, sale and use of the product or its import for the purpose of manufacture, sale or use.

In the case of industrial process or method patent, the right to exploitation include the use of the process or method itself as well as the rights to use or sell the product obtained directly by means of the process or method.

In the case of a process or method patent the right to exploitation includes the right to:

  • Use the process or method
  • Use the product that is obtained directly by means of the process or method
  • Offer for sale the product that is obtained directly by means of the process or method
  • Sell the product that is obtained directly by means of the process or method
  • Import for any of these purposes the product that is obtained directly by means of the process or method

Rights of prevention do not extend to acts done for non-commercial or non-industrial purposes and do not limit what can be done with a product after it has been sold.

United Kingdom

Patents are a registered right which may be obtained to protect inventions (which may include, for example chemical compounds, products, systems, processes and methods). Designs are protected by means of design rights, not by design patents. To be patentable, an invention must:

  • Be novel
  • Involve an inventive step over the prior art
  • Be capable of industrial application (which will be satisfied in almost all cases)
  • Not solely consist of excluded subject matter (such as discoveries, scientific theories, mathematical methods, aesthetic creations, business methods and computer programs)

Hence business methods and computer programs are patentable provided the invention makes a technical contribution to the art over and above the fact it is a business method or computer program.

It is possible to apply for a patent within the UK through the national route, the Patent Cooperation Treaty or under the European Patent Convention (a centralized process administered by the European Patent Office). There are also preparations to introduce a new European patent with unitary effect and a single Unified Patent Court. For more information consult the dedicated UPC page.

A patent owner may prevent third parties performing certain specified activities in relation to products or processes embodying the invention, or products derived from a patented process, including manufacturing, offering for sale and using a product or using or offering for use a process knowing that such use is an infringement in the UK.

Knowingly offering, for supply, an essential feature of the invention for putting the patented invention into effect in the UK is also prohibited.

United States

Patents are a statutory right, granted consistent with a mandate in the US Constitution. Patents grant the right to exclude others from making, using, selling, offering for sale and importing the claimed invention.