Argentina: Utility Model Patent Amendment

Last Updated: 1 July 2019
Article by Moeller IP Advisors

Decree 403/2019

DECTO-2019-403-APN-PTE – Decree Nº 260/1996 Amendment.

City of Buenos Aires, 6/5/2019

BY VIRTUE OF File Nº EX-2018-52897206-APN-DO#INPI of Law Nº 27,444 and Decree Nº 260 dated 20 March, 1996, and

WHEREAS:

That by Decree N° 260/96 the Ordered Text of the Law of Patents of Invention and Utility Models  N° 24,481 was approved, with the amendments of Law N° 24,572, as Annex I.

That, likewise, through the above mentioned decree the Regulation of Law Nº 24,481 was approved, with the amendments introduced by Law Nº 24,572, as Annex II.

That, by Law Nº 27,444 of Simplification and Debureaucratization for the Productive Development of Nation, the amendments to the above mentioned rules were introduced.

That in order to guarantee the meeting with the objectives, it is necessary to fit the existing legal framework to the new approaches and requirements, in order to reduce the burdens on the applicants, to shorten the proceeding terms, to urge the debureaucratization in proceedings and the adoption of new management electronic tools.

That in that order, it is proposed to design a creative and innovating proceeding for the protection by the institute of the utility model, emphasizing the celerity thereof in light of the importance of the protection of innovation for entrepreneurs as well as for Micro, Small and Medium Companies.

That through the present decree, a higher quality of service supply is assured, by establishing transparent and simple proceedings, facilitating the access of public in general to the registration of intangibles, in order to perform remote proceedings before the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY (INSTITUTO NACIONAL DE LA PROPIEDAD INDUSTRIAL (INPI)), an independent organism within the area of the MINISTRY OF PRODUCTION AND WORK.

That within this framework, it is applicable to amend Annex II of Decree Nº 260 dated 20 March, 1996.

The GENERAL DIRECTION OF LEGAL AFFAIRS of the MINISTRY OF PRODUCTION AND WORK has taken the intervention of its competence.

That the present decree is issued in the exercise of granted responsibilities to the NATIONAL EXECUTIVE POWER by article 99, item 2 of NATIONAL CONSTITUTION.

Therefore,

THE PRESIDENT OF THE ARGENTINEAN NATION

HEREBY DECREES:

ARTICLE 1°.- To substitute article 12 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 12.- In order to be granted a patent, the applicant must complete, within the terms specified for each case in the Law or in this Regulation, the following information and documentation:

  1. a) A patent application which should include:

1) An affidavit through which a patent of invention is formally applied for;

2) Complete name of the applicant or the applicants;

3) CUIT, CUIL, CDI and nationality of applicant(s), or registration data when the case is of a legal person. In the case of a human person, the data for the identification of the spouse, when applicable;

4) Real and electronic address of the applicant/s;

5) Complete name of the inventor or the inventors, as applicable;

6) Real address of the inventor or the inventors, as applicable;

7) Title of the invention;

8) Number of patent (or patent application) for which the filed application is additional (if applicable);

9) Number of patent application for which the filed application is divisional (if applicable);

10) When the submission is performed under Law N° 17,011 (PARIS CONVENTION), data of the priority or priorities claimed in patent application: (Country, number and date of filing of foreign application or applications). In the event the applicant does not have the number of foreign priority or priorities by the moment of national application, they may be stated at any moment within THREE (3) months from the filing of national application.

Within the same term, the Application Authority may request the translation into the national language in electronic or digital format when the priority document/s are in another language;

11) Complete name and address of the institution depositing the microorganism, date of deposit and registration number assigned to the microorganism by the applicant institution, when patent application refers to a microorganism;

12) Complete name of the person or the industrial property agent authorized to proceed with patent application;

13) Identity document number of the authorized person or license number of the authorized industrial property agent or general attorney to represent the applicant;

  1. b) A technical description of the invention, headed by the title of the invention, in agreement with the one appearing in the application, which should include:

1) A description of technical field to which the invention belongs;

2) A description of the prior art in this matter, known by the inventor, and preferably stating the literature documents;

3) A detailed and complete description of the invention, highlighting the advantages over the known prior art, understandable to a person skilled in the art;

4) A brief description of figures included in drawings, if any.

  1. c) One or more claims;
  2. d) Technical drawings needed for the comprehension of the invention referred to in the specification;
  3. e) A summary of the description of the invention;
  4. f) Deposit certificate for the microorganism issued by the holder institution, when applicable;
  5. g) When a priority is claimed, the assignment document should be included along with their translation, if applicable, in electronic or digital format."

ARTICLE 2°.- The following should be incorporated as text of article 14 of Annex II of Decree Nº 260 dated March 20, 1996:

"ARTICLE 14.- The priority right claimed at the application moment will serve as an affidavit. When requested by the NATIONAL ADMINISTRATION OF PATENTS at the substantial examination stage, the applicant will have a THREE (3)-month term to include, in electronic or digital format, the priority document or documents and the assignment documents. The Enforcement Authority may require the translation/s of the priority document/s invoked in the application any time they are not in the national language, within THREE (3) months from the date the application was filed.

The non-meeting with the requirements stated in the present article will consider the invoked priority right as cancelled."

ARTICLE 3°.- To substitute article 19 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 19.- The applicant may submit complements, corrections and amendments, up to THIRTY (30) running days as from the date of patent application, any time this does not imply a an extension of the original application."

ARTICLE 4°.- To substitute article 24 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 24.- After NINETY (90) running days from the patent application, the Commissioner of Patents will order the performance of a preliminary examination within a term of TWENTY (20) running days.

The application will be definitely denied if, within the term of THIRTY (30) running days counted from the notification, the applicant does not solve the comments stated by the NATIONAL ADMINISTRATION OF PATENTS in its preliminary examination. In case no response is filed within the stated term, the application will be considered abandoned."

ARTICLE 5°.- To substitute article 27 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 27.- I.- To perform the substantial examination of the application, the following conditions should be met:

  1. a) The preliminary examination should be approved,
  2. b) The application is published in the patent bulletin,
  3. c) The term established in the last paragraph of article 28 of Law N° 24,481 (o. t. 1996), as well as its amendments, is met for the submission of comments from third parties; and
  4. d) That the substantial examination fee is paid.

II.- The substantial examination will include the following steps:

  1. a) Seek for antecedents. The examiner will seek to identify, as his/her judgment makes it possible or reasonable, the documents he/she considers necessary to determine if the invention is new or if it implies inventive activity. His/her seek will include all technical areas that may contain elements corresponding to the invention, and the following documentation should be checked:

1) National patent documents (patents and utility models granted or under proceeding);

2) Published patent application or patents from other countries;

3) Technical literature different from the one stated in prior items which would be pertinent for analysis.

  1. b) Examination. The examiner will investigate, whenever necessary and taking into account the search for antecedents, if the application totally satisfies the requirements of the Law and this Regulation.

III.- If necessary, the examiner may require:

  1. a) Within the term of THIRTY (30) running days from the requirement notification, a copy of the scientific documentation he considers pertinent and/or a copy of the substantial examination performed to the same invention by foreign patent offices.
  2. b) Specific reports related with the subject matter of the invention to investigators working at Universities or Scientific or Technological Investigation Institutes."

ARTICLE 6°.- To substitute article 29 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 29.- When the formulated objections are not satisfactorily solved by the applicant within a term of THIRTY (30) running days, the examiner, after a founded report, will be able to suggest the NATIONAL ADMINISTRATION OF PATENTS the denial of the application. If no response is submitted by the applicant within the stated term, the patent will be denied immediately."

ARTICLE 7°.- To substitute article 30 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 30.- If, as a result of the substantial examination, the examiner determines that the invention meets the legal and regulatory requirements to be granted a patent and, consequently, the issued comments have been satisfactorily solved, he/she will issue a report within the term of TEN (10) days a report to the Commissioner of Patents with his/her advice, who will issue a sentence within THIRTY (30) subsequent days.

Once the resolution granting or denying the granting of the letters patent is sentenced, the applicant should be duly notified.

If the resolution is negative, there will be a THIRTY (30)-day term for the submission of the resource foreseen in article 72 of Law N° 24,481 (o. t. 1996) and amendments.

The Enforcement Authority will arrange the Electronic Registry of granted Patents."

ARTICLE 8°.- To substitute article 32 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 32.- The publication of the granting of a patent of invention and the utility model will include the following information:

  1. a) The number of the granted patent or utility model;
  2. b) The class or classes in which the patent or the utility model is included;
  3. c) The first and last name or the corporate name of the applicant and, if it is the case, of the inventor, as well as their domicile;
  4. d) The title of the granted patent or utility model which will include the specification, claims and drawings if applicable;
  5. e) The date for the granting of the application; and
  6. f) The expiration date"

ARTICLE 9°.- To substitute article 37 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 37.- Then an application of a patent of invention is assigned, the requirements established by the Enforcement Authority should be met.

The holder of a patent will, as from the granting date, be able to request the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY to publish it as a Patent Opened to Voluntary Licensing."

ARTICLE 10.- To substitute article 51 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 51.- The application to an obligatory license for an addition patent granted by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY, by founded resolution, with previous technical or economical certification of the upgrading of the invention. The resolutions sentenced within the framework of this article will be susceptible of the resources foreseen in the last paragraph of article 42 of this Regulation."

ARTICLE 11.- To substitute article 55 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 55.- It will be considered that the invention novelty has not been broken when the applicant has disclosed the invention object of the utility model abroad within TWELVE (12) months prior to the submission of the corresponding application in ARGENTINA. The "industrial character" will be understood as "industrial application" pursuant to article 4°, item e) of Patent Law.

ARTICLE 12.- Incorporate the following as the text of article 56 of Annex II of Decree Nº 260 dated March 20, 1996:

"ARTICLE 56.- The enforcement Authority will be able to solve the utility model application, after THIRTY (30) running days from the filing date without accompanying the document stated in article 56 of Law N° 24,481 (o. t. 1996) and amendments."

ARTICLE 13.- Incorporate the following as the text of article 57 of Annex II of Decree Nº 260 dated March 20, 1996:

"ARTICLE 57.- When de application is performed under Law N° 17,011 (PARIS CONVENTION), the applicant should include, within the term of THREE (3) months from the filing of the application, and in electronic or digital format, the priority document and the assignment document, if applicable, along with their translations in the national language. In case these requirements are not met in the stated term, the priority right will be declined.

The Enforcement Authority will be in charge of establishing the proceeding and the conditions under which the meeting with requirements contemplated in articles 53 and 55 of Law N° 24,481 (o. t. 1996) and amendments will be performed."

ARTICLE 14.- To substitute article 72 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 72.- The submission of an appeal as established in article 72 of Law N° 24,481 (o. t. 1996) and amendments, will not grant the qualification for other administrative or judicial resources that may be pertinent by the application of the rules of Law or of Law N° 19,549, its amendments and the Administrative Proceeding Regulation, Decree 1759/72 – O. T. 2017."

ARTICLE 15.- To substitute article 94 of Annex II of Decree Nº 260 dated March 20, 1996, by the following:

"ARTICLE 94.- The NATIONAL ADMINISTRATION OF PATENTS will be in charge of:

  1. a) The management, study and resolution of the applications for the granting of patents and utility models.
  2. b) Knowing about nullity proceedings for applications and cancellation of granted patents and utility models.
  3. c) Issue certificates and authorized copies of documents contained in files under its jurisdiction.
  4. d) Issue reports and draft statistics on the functioning, activities and performance of the office.
  5. e) Notify about its resolution and proceeding acts through the means determined by the Enforcement Authority.
  6. f) Act along with the DIRECTION OF LEGAL AFFAIRS of the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY, for the appropriate application of international covenants on this matter."

ARTICLE 16.- To substitute article 98 of Annex II of Decree Nº 260 dated March 20, 1996, by the:

"ARTICLE 98.- The authorization for the elaboration and marketing of pharmaceutical products should be required before the Governmental Secretary of Health of the MINISTRY OF HEALTH AND SOCIAL DEVELOPMENT, and regarding agrochemical products, before the Governmental Secretary of Agricultural Industry of the MINISTRY OF PRODUCTION AND WORK."

ARTICLE 17.- The present decree will be in force after SIXTY (60) running days from publication in the Official Bulletin.

ARTICLE 18.- Be it communicated, published, submitted before the NATIONAL DIRECTION OF OFFICIAL REGISTRY and filed. MACRI – Marcos Peña – Dante Sica

  1. 06/06/2019 N° 40234/19 v. 6/6/2019

Application date 6/6/2019

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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