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  • Intellectual property framework

    Overview

    Intellectual property is a right protected by the Constitution of the Republic of Angola. The fundamental intellectual property framework in Angola is provided in 2 main acts: the Legal Regime for the Protection of Copyright and Related Rights and the Industrial Property Law.

  • Commercial contract framework

    Overview

    Angolan law lays down a general principle of contractual freedom, which means that parties are mostly free to establish the terms and conditions to be observed by the contracts they enter into (exceptions are made to mandatory rules legally imposed which will depend on the specific contractual relationship) and are entitled to enter into contracts provided for in the law, but also into contracts that are not provided for in the law.

    Angolan law does not establish a unitary act or set of rules applicable to all commercial contracts. Depending on the specific contractual relationship, commercial contracts may be subject to the provisions of the Civil Code, Commercial Code, Copyright and Related Rights Law, and the Industrial Property Law as well as other specific legislation.

    The aforementioned set of rules changes according to the specific contract in question.

  • Copyrights

    Nature of right

    Copyright covers original literary, scientific and artistic intellectual creations, or works. Registration is not required for the acquisition or maintenance of copyright rights; however, there are certain specific copyright-related acts subject to registration in order to be valid.

    In Angola, copyright comprises economic and moral rights.

    In the scope of economic rights, copyright owners have the exclusive right to use, enjoy and dispose of their work, or to authorize the use of the work, wholly or in part, by third parties.

    Moral rights consist in the right to claim authorship of the work, as well as the right to ensure its genuineness and integrity.

    Legal framework

    Copyrights are governed by Law No. 15/14 of July 31, which introduced the Legal Regime for the Protection of Copyright and Related Rights.

    Duration of right

    As general rule, moral copyrights are unlimited in time and, therefore, are inalienable and imprescriptible. With respect to economic copyrights, copyright protection lasts for a term of 70 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 works in collaboration, copyright expires 70 years after the death of the last surviving author. As per collective works or works originally assigned to a corporate person, copyright expires 70 years from the date of the first licit publication or disclosure, except if the individuals who create it were identified in the version of the work available to the public.

    For an anonymous work, or work that was legally published or disclosed without identifying the respective author, protection is for 70 years after publication or disclosure.

    Please note that, with respect to applied arts and photographic works, economic copyrights protection lasts for a term of 45 years, counted as of January 1 of the first year after the death of the author.

    Economic copyrights related to a broadcaster last up to 35th calendar year after the broadcast.

    Ownership / licenses

    Moral rights are inalienable.

    The copyright owner, as well as their successors or assignees, may authorize the use of the work by third parties or assign economic rights, wholly or partially.

    Granting an authorization to third parties in order for them to divulge, publish, use or explore the work does not imply the transfer of copyright rights.

    Authorization shall only be granted in writing, mandatorily including the parties involved, the title and type of the work, the rights concerned, the duration, place and price conditions.

    Please note that the assigns are only effective against third parties when registered.

    Remedies for infringement

    The copyright owner may request payment of compensation by the agent for damages and losses to repair the damage suffered as a result the infringement, as well as payment of expenses caused by that infringement, which may include legal expenses.

    The amount of the compensation is determined in accordance with the civil liability regime provided for by the Angolan Civil Code, taking into account the amount of material and moral damage suffered by the copyright owner, as well as the profit obtained by the offender.

    When it is proven that the infringing copies affect a right, the Court may order, ensuring that the penalty is proportionate to the seriousness of the offense and taking into account the legitimate interests of third parties, the destruction of those copies and their packaging or their elimination of trade channels by any other reasonable means, without compensation of any kind, in order to avoid any damage to the copyright owner.

  • Mask works / topographies

    Nature of right

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

    Legal framework

    Angolan has enacted no specific rules on protection of mask works or topographies. Although Angola is part of the WTO and has approved the TRIPS Agreement, it has not yet implemented any rules on mask works or topographies protection.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, particularly 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

    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, fishing and handicraft.

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

    Legal framework

    Patents are governed by the following:

    • Chapter II, the Industrial Property Law (Articles 2 to 14)
    • Membership of the World Intellectual Property Organization (WIPO), approved by Resolution No. 9/84 of July 20
    • Paris Convention for the Protection of Industrial Property – approved by Resolution No. 22/05 of August 19
    • Cooperation Treaty patent (PCT) approved by Resolution No. 22/05 of August 19 and
    • Membership of the World Trade Organization (WTO), hence the TRIPS Agreement (Accession November 23, 1996).

    Duration of right

    Patent protection is granted up to a maximum period of 15 years from the date of filling of the patent application.

    Ownership / licenses

    Patents can be transferred in writing, by means of public deed, whether or not for financial reward.

    Patents may also be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses shall be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including patent rights, the court may, at request of the interested party, order the appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Infringement of the exclusive right granted by a patent may be also punishable as crime with imprisonment up to 6 months or a fine.

  • Trademarks

    Nature of right

    A trademark is a sign that distinguishes a company's goods or services, from the goods and services provided by other companies. There are 3 types of trademarks, namely:

    • Nominative: when constituted by letter(s) or word(s)
    • Figurative: consisting of figures or images and
    • Mixed: when it includes a combination of figures and words or letters in its constitution.

    The registered trademark confers to the owner, the right to prevent third parties that do not have their consent from using in the course of trade any sign which is identical or similar to the trademark in relation to goods and/or services which are identical or similar to those for which the trademark is registered.

    Legal framework

    Trademarks are governed by the following:

    • Chapter II, the Industrial Property Law (Articles 29 to 40)
    • Membership of the World Intellectual Property Organization (WIPO), approved by Resolution No. 9/84 of July 20
    • Paris Convention for the Protection of Industrial Property – approved by Resolution No. 22/05 of August 19 and
    • Membership of the World Trade Organization (WTO), hence the TRIPS Agreement (Accession November 23, 1996).

    Angola is not a party to either the Madrid Agreement or the Madrid Protocol. As such, International Registrations (IRs) cannot be extended to Angola. Angola's accession to the Madrid Agreement and/or the Madrid Protocol is currently the subject of consultation, but the position is unlikely to change for a number of years to come.

    Duration of right

    National trademark registrations remain valid for 10 years starting from the date of filing of the application and may be indefinitely renewed for equal periods.

    Ownership / licenses

    Trademarks can be transferred in writing, wholly or partially, whether or not for financial reward. A transfer of the whole of the undertaking shall include the transfer of the trademark except where there is agreement to the contrary or circumstances clearly dictate otherwise.

    Trademarks may also be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses must be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including trademarks, the court may, at request of the interested party, order appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for the damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Trademark infringement is punishable as crime with imprisonment up to 3 months or a fine.

  • Trade secrets

    Nature of right

    Trade secrets are not protected as property in Angola. However, the Angolan Industrial Property Law, in the chapter related to Crimes of Unfair Competition, characterizes as crimes certain conducts involving the unauthorized use of trade secrets. As a result, there is legal protection against the violation of trade secrets.

    Legal framework

    Trade secrets are addressed in article 73 of the Angolan Industrial Property Law.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

    Not applicable for this jurisdiction.

    Remedies for infringement

    Remedies available for infringement of trade secrets can include criminal remedies (imprisonment and monetary fine) and civil remedies (injunction to prevent the continuation of infringements and damages).

    Trade secret violation is punishable with a fine, if a more serious sanction does not apply by applying the provisions of the penal code and Law No. 9/89 (Law on Crimes Against the Economy).

  • Other key IP rights

    Nature of right

    Design

    Industrial design means any new arrangement or set of lines or colors that, for industrial or commercial purposes, can be applied to the ornamentation of a product by any manual, mechanical, chemical, simple or combined process.

    The registered design confers to the owner the right to prevent third parties that do not have their consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

    Industrial designs

    Industrial designs

    Legal framework

    Design

    Designs are governed by Chapter III of the Industrial Property Law (Articles 15 to 28).

    Duration of right

    Design

    Designs registrations remain valid for 5 years starting from the date of filing of the application and may be renewed for 2 consecutive times of 5 years each.

    Ownership / licenses

    Design

    Designs may be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses must be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Design

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including designs, the court may, at request of the interested party, order appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for the damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Infringement of the exclusive right granted by a registered design may be punishable with a fine.

  • Intellectual property in employment context

    Employees

    As a general rule, the copyright over a work made under a labor agreement or in compliance with functional obligations is determined by agreement between the parties. In case no agreement exists, it is presumed that the ownership over the work belongs to the respective intellectual creator. In cases where there is a service provision contract, the property rights over the work are transferred to the contractor or entity represented by it.

    The right to patent shall belong to the inventor or their successors in title. Notwithstanding, if an invention was made during the performance of an employment contract in which inventive activity is provided for, the right to the patent belongs to the employer.

    Consultants / contractors

    In principle, consultants and contractors will retain ownership of the intellectual property developed by them, unless otherwise agreed by the parties or provided for in the law.

  • Key commercial contract considerations

    Registration of commercial agreements

    There are no general registration requirements for commercial contracts under Angolan law; however, certain exceptions may arise. Furthermore, Industrial Property Rights licenses are subject to registration within the Angolan Industrial Property Institute (IAPI) in order to be enforceable against third parties.

    Recognized language of commercial agreements

    There are no general requirements under Angolan law that provide that contracts must be written in Portuguese. However, in certain cases – for instance, contracts with consumers – the Portuguese language is mandatory, and, if the contract is to be used in specific situations – for example, for purposes of evidence in court or used with public authorities – translation to Portuguese is required.

    Country-specific issues for online content

    Electronic contracts are regulated under Presidential Decree No. 202/11 of July 22.

    Enforceability of online/clickwrap/shrinkwrap terms

    Contracts may be concluded electronically, provided that it does not affect its validity or effectiveness due to the use of this medium. Please note that general contractual clauses requiring electronic conclusion of consumer contracts are prohibited.

    The provider shall make available to the recipients, before the conclusion, unambiguous minimum information including (i) the contract conclusion process, (ii) whether or not the contract is stored by the service provider and accessibility by the recipient, (iii) the language or languages in which the contract may be concluded, (iv) the technical means which the provider makes available so that errors of introduction which may be contained in the order form may be identified and corrected, (v) the contractual terms and general clauses of the contract to be concluded, (vi) the codes of conduct subscribed and information on how to consult them electronically  and (vii) the effective technical means which allows the recipient to identify and correct inserted errors.

    Governing law

    The interpretation and enforceability of contracts is a matter of governing law. The choice of law by the parties is accepted as a general principle, except when otherwise provided for by law; please, however, note that, in certain cases, there are rules of mandatory application – for instance, in the scope of contracts concluded with consumers.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    This will depend on the specific warranty. Notwithstanding, the law may provide some restrictions on the enforceability of warranty disclaimers (eg, for reasons of consumer protection).

    Enforceability of exclusions/limitations of liability indemnification

    As general rule, the enforceability of exclusions or limitation of liability is limited under Angolan law. According to civil law, limitation of liability or exclusion of liability concerns the grounds of liability itself and the damages and losses. The law is not absolutely clear when dealing with the matter; therefore, some hold the opinion that the law does not prevent clauses limiting or excluding liability for acts of mere negligence, while others suggest that all clauses of exclusion or limitation are completely null and void.

    Indemnification

    Indemnification clauses in contracts are, in principle, enforceable, but may be subject to restrictions provided for in the law. It is relatively common to stipulate in commercial agreements that the indemnifying party will indemnify and hold harmless the other party against claims of third parties related to the subject matter of the agreement.

    Electronic signatures

    According to Angolan law, a qualified electronic signature is equivalent to an autographic signature in paper documents. An electronic document shall only be deemed to be signed for purposes of evidence where it meets the requirements set by the law on electronic signature and certification.

  • Key contacts
    Murillo Costa Sanches
    Murillo Costa Sanches
    Of Counsel DLA Piper [email protected] T +351 213 583 659 View bio
    Joni Garcia
    Joni Garcia
    Associate DLA Piper ADCA Angola [email protected] T +244 926 612 525

Patents

Nature of right

Angola

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, fishing and handicraft.

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

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 currently two types of patents: standard patents and innovation patents. The Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 is currently being considered by the Australian Government. If passed, the Bill will abolish the innovation patent system in Australia and no new innovation patents will be able to be filed 18 months and one day after the Bill is signed into law.

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, in Chile called “invention”, is defined by the law as any solution to a problem of the technique that gives rise to an industrial activity. It may consist in products or processes in all fields of technology, provided that they are new, inventive and capable of industrial application. Patents are considered to be inventive if for a person normally skilled in the concerned technical field, it is not obvious. The law expressly excludes certain inventions that cannot be patented (for example, plant varieties, mathematical methods, financial plans, etc.).The owner of a patent for an invention has the exclusive right to produce, sell or market, in any form, the product or object of the invention and, in general, to carry out any other type of exploitation thereof. In process patents, this protection is extended to products obtained directly by that process.The owner may not prevent third parties from marketing the product covered by the patent, if they have acquired it legitimately after that product has been lawfully introduced into the commerce of any country by the owner of the right or by a third party with the owner's 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 or utility model, preventing any third party from manufacturing, selling or using such invention or utility model without the inventor's prior consent. Any legal or natural person may file for a patent and, if different people made the same invention or utility model jointly, the right to the patent will be common to all people involved.

Both inventions and utility models 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, and have an industrial application. Nevertheless, the invention has an inventive level that is not required for utility models, meaning that the invention is not obvious or clearly derived from the current state of the art. Therefore, a utility model is a minor invention considering its degree of inventiveness. As such, utility models only include inventions of products and not procedures, as inventions do.

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..."

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, SAR

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

Under Patent Law, patent is an exclusive right granted by the government to an inventor for his/her invention in the field of technology for a certain period of time in operating such invention or granting a consent to other party to do so. 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 (products and processes) that are deemed to be new, 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 of significantly improving 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 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 in for his 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 prior use under Article 9(1) Dutch Patent Act 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.

Philippines

A patent is an exclusive right that allows the inventor to exclude others from making, using or selling the product of their invention during the life of the patent.  An invention patent is a government-issued grant, bestowing an exclusive right to an inventor over a product or process that provides any technical solution to a problem in any field of human activity which is new, inventive and industrially applicable.

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, China

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, and
  • 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 third parties from producing, using, selling or importing the product or applying the methods 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.