What is a patent?
Patent is an exclusive right over an industrializable invention or creation, granted by an official public body.
A patent can confer exclusivity on products, tools, procedures and processes, as long as the project is presented, that is, documentation that explains the invention and proves its feasibility. This project is not to be confused, therefore, with a prototype.
Through the patent, the author of the invention prohibits third parties, without his consent, from producing, using, offering for sale, selling or importing the patented product, or product resulting from a patented process.
In Brazil, the body responsible for issuing patents is the National Institute of Industrial Property – INPI. The patent is only valid in the national territory. In addition, the document confers a temporary property title, given that it has a fixed term, which varies according to the type of patent.
The holder of a patent is obliged to exploit the patented object. If not, the patent can be licensed compulsorily, allowing other producers to make use of it.
The rules related to patents are provided for in Law No. 9,279/96 (Industrial Property Law).
What are the requirements to obtain a patent?
To obtain a patent, the object must meet four requirements:
Novelty: the object of the patent must be new in the scientific community. It is not possible to patent something that already exists.
Inventive activity: the inventive activity consists of the author’s degree of contribution to the existence of that new product or process. Thus, it is expected that the existence of the object of the patent would not be possible without the author’s idea.
Industrial application: the object of the patent must be capable of industrial application, that is, in manufacturing.
No impediment: the object of the patent cannot be framed in any of the impeditive causes of Law No. 9,279/96. Among them are:
- what is contrary to morals, good customs and security, order and public health;
- substances, materials, mixtures, elements or products of any kind, as well as the modification of their physical-chemical properties and the respective processes of obtaining or modifying them, when resulting from the transformation of the atomic nucleus;
- all or part of living beings, except for transgenic microorganisms that meet the three patentability requirements: novelty, inventive step and industrial application – provided for by law and which are not mere discoveries.
Who can apply for the patent?
The patent may be requested by the author (individual or legal person), by the author’s heirs or successors, by the assignee or by another person indicated in an employment contract or service provision.
When the object of the patent is held by two or more people, any one of them can apply on behalf of all of them.
When two identical patents are applied for, the individual who applied first to the National Institute of Industrial Property – INPI will be entitled, regardless of the date of invention or creation.
Types of patents and their validity periods
According to Law No. 9,279/96, the types of patents existing in Brazil are:
Patent of Invention (IP)
Products or processes that meet the requirements of inventive step, novelty and industrial application. Its validity is 20 years from the filing date (presentation at the National Institute of Industrial Property – INPI).
Examples: band-aid, safety pin, electric iron, etc.
Utility Model Patent (MU)
Object of practical use, or part of one, subject to industrial application, which presents a new form or arrangement, involving an inventive act, which results in a functional improvement in its use or manufacture. Its validity is 15 years from the date of deposit.
Examples: left-handed shears, tree pruning shears, etc.
There is also a title called Certificate of Addition of Invention (C), which aims at the improvement or development introduced in something already invented, therefore, it does not need to have an inventive step. The certificate will be part of the patent and with the same expiry date as this one, so it is not considered a type of patent, since it works as an accessory document.
Is it possible to patent an idea?
It is not possible to patent ideas. For this reason, an understandable design of the product or process to be patented is required, capable of proving its feasibility. According to Law No. 9,279/96, the following are not considered inventions or utility models:
- discoveries, scientific theories and mathematical methods;
- purely abstract conceptions;
- commercial, accounting, financial, educational, advertising, lottery and inspection schemes, plans, principles or methods;
- literary, architectural, artistic and scientific works or any aesthetic creation;
- computer programs themselves;
- presentation of information;
- game rules;
- operative or surgical techniques and methods, as well as therapeutic or diagnostic methods, for application to the human or animal body;
- all or part of natural living beings and biological materials found in or isolated from nature, including the genome or germplasm of any natural living being and natural biological processes.
How to apply for a patent?
Patent applications can be made in the following ways:
- via the internet, on the portal of the National Institute of Industrial Property – INPI;
- at the agency’s headquarters in Rio de Janeiro;
- in representative bodies of the INPI in other Brazilian capitals;
- by mail, with acknowledgment of receipt addressed to the Patent Office.
Applications can be made in your own name. There is no need to hire a lawyer or a specialized office.
The protection conferred by the patent will only take effect with the approval of the application, not with its submission.
Differences between trademark and patent registration
In the business world, confusion between trademark and patent registration is common, although the institutes protect different objects.
While the patent aims to guarantee an exclusive property right over an invention or utility model, the trademark registration serves to guarantee the exclusive use of a trademark, that is, any distinctive sign (images, sounds, expressions, etc.) manufacturer or service provider.
As with the patent, the registration of trademarks is also in force throughout the national territory and is also required before the National Institute of Industrial Property – INPI. Once obtained, the owner prevents competitors from using the trademark. This process has nothing to do with patents.
List of Acronyms Related to Patent