ARTICLE
27 March 2024

Requirements For Obtaining A Patent

LA
Leão Advogados Associados

Contributor

Leão Advogados Associados
A patent is a technical document with legal purposes. Technical because it must describe an industrial creation and legal because it defines...
Brazil Intellectual Property
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A patent is a technical document with legal purposes. Technical because it must describe an industrial creation and legal because it defines a right to exclude unauthorized third parties from reproducing the invention1.

Preliminarily, it must be clarified that in the national territory patents can be of two types: invention2 and utility model3. It is important to highlight that creations of an ornamental nature (design) when applied to industrializable products can be protected by industrial design registration4.

It should be noted that the application for filing a patent application consists of a descriptive report, claims, drawings and summary. In patent applications that deal with products (articles, utensils, tools, devices, equipment, etc.), as well as in utility model applications, drawings are mandatory.

For a patent to be granted, its object must meet the requirements of novelty, inventiveness and industrial applicability.

Novelty is understood as something that is not understood in the state of the art. In addition, the state of the art is “all that made accessible to the public before the date of filing of the patent application”.

Here, caution must be exercised regarding the interpretation of “making it accessible to the public”, which is broader than being published, that is, it is enough for any interested person to be able to freely obtain this information.

For information to be considered part of the prior art, it must meet the following requirements:

  • certainty (have a proven date of when it was generated);
  • sufficiency (has a description that allows comparison with the object submitted for patenting) and
  • advertising (has been made available to the general public).

The inventive effort is relative to the nature of the patent under examination: if an invention patent the requirement is that the creation characterizes inventive activity, if a utility model patent the requirement is that the model characterizes an inventive act. In other words, to characterize inventive activity, creation cannot be considered as a mere evident or obvious result of the state of the art, that is, a mere adaptation, modification or improvement resulting from logical reasoning of what already existed previously.

For a utility model, the creative effort is smaller, as long as the model is not considered a common or vulgar variation of what already exists. However, utility models must still, in addition, result in a functional improvement in use or manufacturing.

Finally, patents must be capable of industrial application, that is, their objects must be capable of serial production in the case of products, or be used in the manufacturing sector, in the case of processes or methods.

Equally important is the obligation of patents to present descriptive sufficiency, that is, to contain detailed information, so that (a) they enable the reproduction of their object by professionals in the specific technical area5 and (b) clearly and precisely define the extent of protection conferred by the patent6.

In summary, to be granted a patent you must:

  1. Contain a detailed description based on drawings, when applicable, in order to enable the technician of the specific segment to reproduce it based only on the information described in the report and, when necessary, complementing it with information already available in the prior art;
  2. Clearly and precisely detail the specific technical characteristics to be protected;
  • Refer to a new and inventive object that makes a minimum qualitative contribution to the state of the art.

Footnotes

1. Brazilian Industrial Property Law - Lei 9279, Article 42

2. LPI, Article 8º

3. LPI, Article 9º

4. LPI, Article 95

5. LPI, Article 24

6. LPI, Article 41

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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