What is a patent?

Patent is a title of ownership over an invention (IP) or utility model (MU) granted by the State for a determined period of time to the inventor, author or right holder (individual or legal entity holding the right), which may prevent third parties from producing , use or sell the product or process covered by the patent. That is, if you have a patent, whoever wants to use it must negotiate its licensing by paying royalties.

What types of patents exist and how long are they valid?

Patent of Invention (PI), Utility Model Patent (MU) and Certificate of Invention Addition (C). 

The invention patent aims to protect products or processes resulting from the exercise of man's ability to create, which represent a solution to a specific technical problem within a given technological field, and must meet the requirements of inventive step, novelty and industrial application. It is valid for 20 years from the filing date. 

The utility model patent protects the object of practical use or part of it susceptible of industrial application, which presents a new form or disposition involving an inventive act, resulting in a functional improvement in the use or manufacture of the object. It is valid for 15 years from the deposit date.

The certificate of addition of invention protects the improvement or development introduced in the object of the invention, even if devoid of inventive step, but still within the same inventive concept. The certificate is an accessory to the patent and therefore has the validity date linked to it.

Examples of invention patents and utility models:

What are the advantages of having a patent?

The granted patent guarantees its holder exclusive use and commercial exploitation, in addition to being able to prevent the production, use and/or sale of the product or process object of the patent by third parties. 

What can be patented in Brazil?

The invention arises from a creative process and it becomes patentable as long as it meets the requirements of novelty, inventive step and industrial application. It will also be patentable if, in the case of an object or part of it, it presents a new form or arrangement that results in a functional improvement in its use or manufacture, provided that it involves an inventive act and can be manufactured on an industrial scale.

What cannot be patented in Brazil?

Discoveries, scientific theories and mathematical methods; purely abstract concepts/ideas; 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.

Anything that is contrary to morals, good customs and public safety, order and 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 transgenic microorganisms that meet the three patentability requirements - novelty, inventive step and industrial application - and that are not mere discoveries.

What are the risks of not registering your patent?

Not registering the patent can mean the loss of the right of exclusivity, in addition to discrediting the ownership of the invention, the loss of the right of commercial exploitation and the consequent financial return arising from it, the unwanted use of the invention by third parties.

What is the purpose of searching for patent precedents?

The search for prior art serves both for the monitoring of the market and the competition and for the purpose of analyzing the prior art existing in the market, in addition to assisting in the substantiation of the request and also in the verification of compliance with the requirements for granting the patent (novelty, inventive step and industrial application) noting what is in the public domain and may eventually conflict with what is intended to be protected. The search also avoids unnecessary expenditures of time and money.

CURIOSITY

According to the World Intellectual Property Organization (WIPO), the number of patent applications is 2.5 million/year, which results in about 1.2 million patents granted per year. The search for patents (both already granted and applied for) is increasingly used as a competitive strategy for monitoring the development of new technologies, competitors, identification of technological trends and investments by American, Asian and European companies. 

Source: https://www.gov.br/inpi/pt-br/servicos/patentes/guia-basico/busca-de-patentes Accessed on 03/02/2021.

Source: Vanessa Pereira Oliveira Soares, attorney at Cesar Peres Dulac Müller, specializes in Intellectual Property.