ARGENTINA
Patent Regulation
of Sections of Law No. 24.481 as amended by Law No. 24.572 of 1995
ENTRY INTO FORCE: 1995
TABLE OF CONTENTS
TITLE I GENERAL PROVISIONS
SECTION 1
SECTION 2
SECTION 3 Not regulated
TITLE II PATENTS
CHAPTER I PATENTABILITY
SECTION 4
SECTION 5
SECTION 6
SECTION 7
CHAPTER II RIGHT TO THE PATENT
SECTION 8
SECTION 9
SECTION 10
SECTION 11 Not regulated
CHAPTER III GRANT OF PATENT
SECTION 12
SECTION 13
SECTION 14 Not regulated
SECTION 15
SECTION 16 Not regulated
SECTION 17
SECTION 18 Not regulated
SECTION 19
SECTION 20
SECTION 21 Not regulated
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SECTION 22
SECTION 23 Not regulated
SECTION 24
SECTION 25 Not regulated
SECTION 26
SECTION 27
SECTION 28
SECTION 29
SECTION 30
SECTION 31 Not regulated
SECTION 32
SECTIONS 33-34 Not regulated
CHAPTER IV DURATION AND EFFECTS OF THE PATENT
SECTION 35 Not regulated
SECTION 36
CHAPTER V ASSIGNMENT OF RIGHTS AND CONTRACTUAL LICENSES
SECTION 37
SECTIONS 38-40 Not regulated
CHAPTER VI EXCEPTIONS TO THE RIGHTS GRANTED
SECTION 41
CHAPTER VII OTHER USES WITHOUT AUTHORIZATION BY THE PATENTEE
SECTION 42
SECTION 43
SECTION 44
SECTION 45
SECTION 46
SECTION 47
SECTIONS 48-49 Not regulated
SECTION 50
CHAPTER VIII PATENTS OF ADDITION OR IMPROVEMENT
SECTION 51
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SECTION 52 Not regulated
TITLE III ON UTILITY MODELS
SECTIONS 53-54 Not regulated
SECTION 55
SECTIONS 56-57 Not regulated
SECTION 58
TITLE IV LAPSING OF PATENTS AND UTILITY MODELS
SECTIONS 59-61 Not regulated
SECTION 62
SECTIONS 63-66 Not regulated
TITLE V ADMINISTRATIVE PROCEDURES
CHAPTER I PROCEDURES
SECTIONS 67-69 Not regulated
SECTION 70
SECTION 71 Not regulated
CHAPTER II PETITIONS FOR RECONSIDERATION
SECTION 72
SECTIONS 73-74 Not regulated
TITLE VI VIOLATION OF THE RIGHTS GRANTED BY THE PATENT AND THE UTILITY
MODEL CERTIFICATE
SECTIONS 75-82 Not regulated
SECTION 83
SECTIONS 84-89 Not regulated
TITLE VII ON THE ORGANIZATION OF THE NATIONAL INSTITUTE OF INDUSTRIAL
PROPERTY
SECTION 90
SECTION 91
SECTION 92
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SECTION 93
SECTION 94
SECTION 95 Not regulated
TITLE VIII FINAL AND TEMPORARY PROVISIONS
SECTION 96
SECTION 97
SECTION 98
SECTION 99 Not regulated
SECTION 100
SECTION 101
SECTION 102
SECTIONS 103-104 Not regulated
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TITLE I GENERAL PROVISIONS
SECTION 1
All rights and obligations recognized by the application of the Law, shall
be equally recognized to foreign natural or legal persons having their
legal domicile or constituting special domicile in the Republic of
Argentina, under the terms and within the scope provided for by Laws Nos.
17.011 and 24.425.
SECTION 2
The grant of patents of invention and certificates of utility models shall
be carried out in accordance with the provisions and procedures established
in this Regulation.
SECTION 3 Not regulated
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TITLE II PATENTS
CHAPTER I PATENTABILITY
SECTION 4
To obtain a patent of invention, an application, as referred to in Section
12 of the Law and other provisions of this Regulation, shall be filed
with the NATIONAL PATENT OFFICE or with the provincial delegations therefor
authorized by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY.
SECTION 5
Should the inventor have disclosed his invention within the year previous
to the date of filing of his application, he shall declare this in writing,
and jointly with the patent application he shall file:
a) a sample or copy of the means of communication by which the invention
was disclosed, if it were a graphic or electronic means.
b) a mention of the means and its geographical location, of the disclosure,
and of the date on which it was disclosed, if it were an audiovisual means.
c) a reliable record of the inventor’s or the applicant’s participation
in the national or international exhibition where the invention was
disclosed, its date and the scope of disclosure.
Applicant’s declaration shall be considered as an affidavit, and in case
of falsehood, he shall forfeit the right to obtain the letters patent
or the certificate of utility model.
SECTION 6
Plants, animals, and essentially biological processes for their
reproduction shall not be considered as patentable matter.
SECTION 7
The NATIONAL EXECUTIVE POWER shall be entitled to prohibit the manufacture
and marketing of inventions, the commercial exploitation of which within
its territory must be necessarily forbidden in order to protect public
order or morality, the health or life of people or animals, to preserve
plants or prevent serious damages to the environment.
CHAPTER II RIGHT TO THE PATENT
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SECTION 8
Applicant may mention the name of the inventor or inventors in his
application, and request its inclusion in the publication of the patent
application, in the industrial property title to be granted and in the
publication of the patent of invention or utility model.
The patentee who in any way becomes aware of the importation of goods
infringing the rights granted to him by the Law shall be entitled to bring
the administrative or judicial actions that may legally correspond.
SECTION 9
The inventor or inventors who may have assigned their rights, shall be
entitled to appear at any moment during prosecution and request the
inclusion of their names in the corresponding title after having proved
their capacity as such. A notice on such petition shall be duly served
upon the assignee, who shall answer it within 30 calendar days. In case
of opposition, the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall make
a decision within 30 calendar days calculated as from the answer to the
notice or from the submission of the evidence required for the clarification
of the facts involved.
SECTION 10
It will be understood that the right to apply for a patent belongs to
the employer, when the performance of inventive activities has been
established as a total or partial purpose of the employee’s duties.
For the purposes of the second paragraph, subsection b), Section 10 of
the Law, it shall only be understood that the development of the invention
has been predominantly influenced by the knowledge acquired within the
companyorbytheuseoffacilitiesprovidedbythelatter,whentheinvention
concerns the employer’s activities or is related to the specific tasks
being or having been performed by the inventor in the service of said
employer.
Once an invention is made under the conditions established in the second
paragraph, subsection b), Section 10 of the Law, if the employer fails
toexercisehisrighttooptwithinthetermestablishedinthelastparagraph
ofthesamesubsection,therightofownershiptothepatentshallcorrespond
to the inventor-employee.
Should the invention have been made by an employee under the conditions
set forth in the second paragraph, subsection b), Section 10 of the Law
and before the Letters Patent is granted, the inventor may file a founded
written petition under sealed envelope with the NATIONAL PATENT OFFICE
or with the provincial delegations authorized by the NATIONAL INSTITUTE
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OF INDUSTRIAL PROPERTY, alleging his ownership rights thereto. In this
event, the parties shall be notified by the Commissioner of Patents in
order that they file their pertinent allegations in writing within an
unextendible term of 15 days as from respective notifications. Within
30 days after the above mentioned petitions, or the submission of the
evidence offered, as the case may be, the NATIONAL INSTITUTE OF INDUSTRIAL
PROPERTY shall issue a duly founded decision determining who is entitled
to apply for the patent. Such decision shall be notified to both parties
through a reliable means.
In case of disagreement between the employer and his employee on the amount
of supplementary remuneration or monetary compensation as provided by
the first paragraph of subsection b) and in subsection c) of Section 10
of the Law, respectively, either of them may at any time request the
intervention of the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY for the
settlement of their dispute, by filing duly founded allegations. Notice
of such a petition shall be served upon the other party for 10 days from
such notification. Within 20 days after the answer to the notification
or the submission of the evidence offered, as applicable, the NATIONAL
INSTITUTE OF INDUSTRIAL PROPERTY shall issue a duly founded resolution
establishing the supplementary remuneration or monetary compensation
which, at its discretion, is equitable. Such a resolution shall be duly
notified to both parties through a reliable means.
The decisions of the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY as referred
to in the two preceding paragraphs, may be appealed to a Federal Court
of Justice in Civil and Commercial Matters with territorial jurisdiction
over the domicile of the work place, within 20 business days as from such
notice. The appeals shall have no staying effect.
SECTION 11 Not regulated
CHAPTER III GRANT OF PATENT
SECTION 12
In order to obtain a patent, applicant shall, within the terms in each
case specified in the Law or in the instant Regulation, submit the following
information and documentation:
a) A patent application including the following data:
1) a statement by which a patent of invention is formally requested;
2) full name of the applicant or applicants;
3) identity document number and nationality of the applicant or applicants,
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or registration data if it were a legal person;
4) domicile of choice of the applicant or applicants;
5) legal address of the applicant or applicants;
6) full name of the inventor or inventors, if applicable;
7) domicile of choice of the inventor or inventors, if applicable;
8) title of the invention;
9) number of patent (or patent application) to which the application being
filed is additional (if applicable);
10) number of the patent application of which the application being filed
is divisional (if applicable);
11) number of application for a certificate of utility model the conversion
of which into a patent application is being requested (if applicable)
or vice-versa;
12) when the application is filed under Law 17.011 (PARIS CONVENTION),
data on the priority or priorities being claimed in the patent application
(country, number and date of filing of the foreign patent application
or applications);
13) full name and address of the institution where the microorganism has
been deposited, date on which it was deposited, and registration number
assigned to the microorganism by the depositary institution, when the
patent application refers to a microorganism;
14) full name of the person or of the industrial property agent authorized
to prosecute the patent application;
15) number of identity document of the authorized person, or registration
number of the authorized industrial property agent, or of the attorney
empowered by the applicant;
16) signature of the person filing the application.
b) A technical description of the invention, headed by the patent title,
coincident with the application title, and containing:
1) a description of the technical field to which the invention pertains;
2) a description of the state of the art in said field, as known by the
inventor, preferably mentioning the documents where it is disclosed;
3) a detailed and full description of the invention, emphasizing its
advantages over the known state of the art, understandable by a person
skilled in the art;
4) a brief description of the figures included in the drawings, if any.
c) One or more claims.
d) The technical drawings necessary to understand the invention referred
to in the technical description.
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e) An abstract of the description of the invention.
f) Reproductions of drawings at reduced scale to serve for the publication
of the application.
g) Certificate of deposit of the microorganism issued by the depositary
institution, when applicable.
h) Receipt of payment of the application filing fees.
i) Certified copies of the priority or priorities claimed in the
application.
SECTION 13
The priority date referred to in Section 13 of the Law shall be determined
as established by Law No. 17.011.
SECTION 14 Not regulated
SECTION 15
When a patent application is jointly filed by two or more persons, it
will be presumed that they are entitled to the right in equal parts, except
when in the application it is stated otherwise.
SECTION 16 Not regulated
SECTION 17
When the patent application comprises more than one invention, it shall
be divided before grant. For such purpose, the NATIONAL PATENT OFFICE
shall notify applicant that he must request such division within 30 days
after notification, otherwise the application shall be held abandoned.
SECTION 18 Not regulated
SECTION 19
As from the date of filing of the patent application and for 90 days
afterwards, applicant may add supplements, corrections, and amendments,
provided that they do not imply an extension of the object thereof. After
said term, only the elimination of deficiencies found by the examiner
shall be authorized. The new embodiments that might be added shall be
complementary for a better understanding of the invention. No right can
derivefromsupplements,correctionsoramendmentswhichimplyanextension
of the original application.
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SECTION 20
When the object of a patent application is a microorganism or when carrying
itoutrequiresanunknownorpubliclyunavailablemicroorganism,applicant
shall deposit the strain at an institution authorized therefor and
recognized by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY. This
obligation shall be deemed as satisfied when the microorganism has been
deposited as from the date of filing of the application or before such
date.
The NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall recognize as entitled
to receive deposits of microorganisms, pursuant to Section 20 of the Law,
those institutions recognized by the WORLD INTELLECTUAL PROPERTY
ORGANIZATION or those complying with the following requirements:
a) are of a permanent character;
b) are not under the control of depositors;
c) avail themselves of suitable personnel and facilities to verify the
pertinenceofdepositsandguaranteetheirstorageandconservationwithout
risk of contamination;
d) provide the necessary safety measures to minimize the risk of loss
of the deposited material.
At any moment, as from the date of publication of the patent application,
the public shall be able to obtain samples of the microorganism from the
depositary institution under the ordinary conditions established for such
operation.
SECTION 21 Not regulated
SECTION 22
The claim or claims shall contain:
a) a preamble or introduction beginning with the same title as that given
to the invention, afterwards describing all the aspects of the invention
which are known from the nearest state of the art.
b) a characterizing part citing the elements which establish the novelty
of the invention and which are necessary and essential to carry it out,
serving to define what is desired to be protected.
c) if further clarification and comprehension of the invention is required,
the main claim, which is the only independent one, may be followed by
one or several claims referring back to the claim on which they depend
and specifying the additional features they intend to protect. The same
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procedure must be followed when the main claim is followed by one or several
claims relating to particular features or embodiments of the invention.
SECTION 23 Not regulated
SECTION 24
Once all the documentation specified in Section 19 of the Law is received,
the Commissioner of Patents shall order that a preliminary formal
examination be carried out within a term of 20 days.
The application shall be rejected forthwith if applicant, within the term
of 180 days after being notified, does not overcome the deficiencies pointed
out by the NATIONAL PATENT OFFICE in its preliminary examination. Should
the deficiency refer exclusively to the foreign priority, prosecution
of the application shall continue, but it will be considered as if the
priority had never been claimed. The certificates of applications that
are resolved, shall be issued making it clear that they are granted without
prejudice to the priority right granted by Law No. 17.011, unless the
interested party requests the stay of prosecution until the priority term
contemplated shall have elapsed. The request for the stay of prosecution
shall be made upon filing of application.
SECTION 25 Not regulated
SECTION 26
The publication of the patent application under prosecution shall contain:
a) application number;
b) date of filing of the application;
c) number/s of the priority or priorities;
d) date/s of the priority or priorities;
e) country or countries of the priority or priorities;
f) full name and domicile of applicant or applicants;
g) full name and domicile of the inventor or inventors (if applicable);
h) registration number of the authorized industrial property agent (if
applicable);
i) title of the invention;
j) abstract of the invention;
k) the most representative drawing of the invention, if any.
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SECTION 27
I. No substantive examination shall be carried out if the preliminary
examination has not been made and approved.
II. Once the filing formalities have been fulfilled, applicant may request
for the substantive examination. The Commissioner of Patents shall,
within the subsequent 15 days, assign the application to an examiner.
The substantive examination shall be carried out within 180 days after
the payment of the fee, and shall include the following steps:
a) Background search. To the extent the examiner deems it reasonable
and feasible, he shall endeavour to identify the documents necessary to
determine whether the invention is new and whether it implies inventive
activity. His search shall embrace all technical sectors that may deal
with elements related to the invention, and he shall consult the following
documentation:
1) documents of national patents (granted patents and utility models and
applications for patents and utility models under prosecution);
2) applications for patents already published, and patents from other
countries;
3) technical literature different from that mentioned in the two preceding
paragraphs, that might be pertinent in the search.
b) Examination. The examiner shall carry out his search up to the extent
he considers necessary, taking into account the results of the preliminary
examination and of the background search, to determine if the application
fully complies with the requirements of the Law and of this Regulation.
III. Should the examiner consider it necessary, he shall require:
a) That applicant submit, within a term of 90 calendar days as from the
notice of such requirement, a copy of the substantive examination carried
out on the same invention by foreign patent offices, if available, pursuant
to Section 28 of the Law.
b) Specific reports related to the subject matter of the invention, from
researchers working at Universities or scientific or technological
research Institutes.
When the collaboration indicated in subsection b) is requested, the
NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall recognize and pay the
professional fees corresponding to the category of Senior Researcher of
the NATIONAL COUNCIL OF SCIENTIFIC AND TECHNICAL RESEARCH (CONICET) or
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of an equivalent institution, on the basis of an estimation of time
assignment previously approved by the Commissioner of Patents.
IV. If applicant considers it pertinent, he may request the NATIONAL PATENT
OFFICE to authorize that the partial substantive examination be carried
out at his own facilities with the purpose of verifying data in laboratories
or production equipment. The Commissioner of Patents may accept or refuse
the offer on the basis of what, at his discretion, may be necessary or
advisable.
SECTION 28
Among his observations, the examiner shall include those submitted by
third parties, based on the data appearing in the publication made pursuant
to Section 28 of the Law on the grounds of lack of novelty, lack of industrial
application, lack of inventive activity, or illegality of the subject
matter of the application, unless they are manifestly unfounded and are
so declared.
Within 60 calendar days after receiving the above mentioned notice, the
applicant shall:
a) Amend the application so as to adapt it to the legal and regulatory
requirements, or
b) Express his opinion on the observations, rebut them or submit the
clarifications he considers pertinent or appropriate.
c) Should the applicant fail to meet the requirements within the stipulated
term, his application shall be considered withdrawn.
SECTION 29
When the objections raised are not satisfactorily overcome by the applicant,
the examiner, after issuing a well-founded report, which shall be duly
notified to applicant, may recommend the NATIONAL PATENT OFFICE to reject
the application under the terms of Section 29 of the Law.
SECTION 30
If as a result of the substantive examination, the examiner determines
that the invention complies with all legal and regulatory requirements
authorizing the grant of a patent and, if applicable, that the objections
raised have been satisfactorily overcome, within 10 days he shall submit
a report containing his recommendation to the Commissioner of Patents,
who shall take a decision within the subsequent 30 days.
14
Once the resolution by which the patent is granted or rejected is issued,
due notice shall be served upon the applicant through a reliable means.
In case of rejection, a term of 30 days shall start to run for filing
a recourse or appeal under Section 72 of the Law.
The patents granted by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall
be registered with the Registry of Granted Patents in correlative order,
recording the number, title, patentee’s full name, date and number of
application, date of grant, and date of expiration. Such registration
can be made by magnetic media, adopting all resources necessary to assure
their conservation and unalterability.
SECTION 31 Not regulated
SECTION 32
The notice on the grant of the patent shall also be included in the book
to be published by the INSTITUTE.
SECTIONS 33-34 Not regulated
CHAPTER IV DURATION AND EFFECTS OF THE PATENT
SECTION 35 Not regulated
SECTION 36
For the purposes established in subsection c) of Section 36 of the Law,
the owner of a patent granted in the REPUBLIC OF ARGENTINA shall have
the right to prevent third parties from carrying out without his consent
acts of manufacture, use, offer for sale, or importation within the
territory, of the product which is the subject matter of the patent, unless
such product has been lawfully placed on the market of any country. It
shall be understood that an imported product has been lawfully placed
on the market when the licensee authorized to market it within the country
shows that it has been placed on the market by the patentee in the country
where it was acquired, or by a third party authorized to market it.
The marketing of the imported product shall be subject to the provisions
of Section 98 of the Law and of this Regulation.
CHAPTER V ASSIGNMENT OF RIGHTS AND CONTRACTUAL LICENSES
SECTION 37
Should an application for patent of invention be assigned, an application
15
bearing the names and domiciles of assignor and assignee shall be filed
together with a certification of both parties’ signatures. The assignee
shall constitute a legal address in the FEDERAL CAPITAL.
The NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall create 2 registries,
one for patents of invention, and another for certificates of utility
models, where the assignments pursuant to Section 37 of the Law shall
be registered.
The assignment of rights shall be effective against third parties as from
the date thereof when the filing is made 10 business days after execution
of the assignment. Otherwise, such assignment shall be effective against
third parties only after the date of registration.
The patentee, as from the date the patent is granted, shall be entitled
to file a written request with the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY
for the inclusion of the patent in the Registry of Patents Available for
Voluntary Licensing to be provided therefor by the INSTITUTE.
Such Registry may be consulted by any interested party who, if he so desires,
shall negotiate with the patentee the conditions of the license to use
the patent.
The NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall publish in the Bulletin
of Patents of Invention and Certificates of Utility Models and make known
by the means it considers advisable, the patents registered in the above
mentioned Registry, mentioning the number, title, date of grant, and date
of incorporation into such Registry.
SECTIONS 38-40 Not regulate
CHAPTER VI EXCEPTIONS TO THE RIGHTS GRANTED
SECTION 41
The MINISTRY OF ECONOMY AND PUBLIC WORKS AND SERVICES jointly with the MINISTRY OF HEALTH AND SOCIAL WELFARE or the MINISTRY OF DEFENSE, to the extent of the latter’s competence, will be the competent authority to request the grant of limited exceptions of the rights granted by patents, under the terms and with the limitations established by Section 41 of the Law.
CHAPTER VII OTHER USES WITHOUT AUTHORIZATION BY THE PATENTEE
SECTION 42
Once the term established in Section 43 of the Law has elapsed, should
the invention have not been exploited, except in cases of force majeure,
or effective and serious preparations for the exploitation of the invention
16
being the subject matter of the patent have not been made, or when the
exploitation of the patent has been interrupted for more than one year,
then any person may request the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY
for the grant of a compulsory license to manufacture and sell the patented
product or for the use of the patented process. For such purpose, he
shall show that he has attempted to obtain the grant of a voluntary license
from the patentee, under reasonable commercial terms and conditions, and
that such attempts have been unsuccessful after a term of 150 days, and
that he is in technical and commercial conditions to supply the domestic
market under reasonable commercial conditions.
The petition for license shall be handled by the NATIONAL INSTITUTE OF
INDUSTRIAL PROPERTY; it shall contain the grounds on which it is based
and all pertinent evidence shall be offered therein. Notice of such
petition shall be duly served on the patentee at his legal address as
appearing in the corresponding file, for a term of 10 business days in
order for him to reply and offer evidence. The NATIONAL INSTITUTE OF
INDUSTRIAL PROPERTY may reject the evidence submitted which it does not
consider as pertinent, and any further evidence shall have to be produced
within a term of 40 days. Once this term has elapsed, or after all evidence
has been produced, the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall
take a duly founded decision granting or rejecting the application for
compulsory license.
The decision made by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY granting
or rejecting the compulsory license may be appealed to a Federal Court
of Justice on Civil and Commercial Matters within 10 days after notice,
without prejudice to the recourses established by Section 72 of the Law
and in the National Law on Administrative Procedures and the Regulation
thereof. The filing of a judicial recourse shall have no staying effects.
SECTION 43
The distribution and marketing to a sufficient degree so as to satisfy
the needs of the domestic market under reasonable commercial conditions
shall be considered as exploitation of a product.
The NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY, after hearing both parties,
andifanagreementisnotreachedbetweenthem,shalldetermineareasonable
compensation to be received by the patentee, to be established according
to the circumstances in each case, and taking into account the economic
value of the authorization being granted, and the average royalties being
paid within such commercial field of activities when similar license
agreements between independent parties are executed.
The decisions made by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY within
17
the framework of this section, may be appealed pursuant to Section 42,
last paragraph of this Regulation.
SECTION 44
The authority empowered by Law No. 22.262, or that replacing or substituting
it,whetherpursuanttolaworattherequestofeitherparty,shalldetermine
the existence of a supposed case of unfair competition, when so irregularly
carried out as to constitute an abuse of a dominant position in the market,
under the terms established by Section 44 of the Law and in other provisions
in force of the Law for the Defense of Fair Competition, after having
summoned the patentee in order that he may set out the reasons ensuing
from his right, for a term of 20 days. Once the explanations and, if
applicable, the evidence offered, have been produced, the above-mentioned
authority shall determine whether the grant of compulsory licenses is
pertinent, and shall give its opinion regarding the conditions in which
they should be offered.
In this event, once the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY receives
the above-mentioned files, it shall publish a notice in the Official Gazette,
in the Bulletin of Patents, and in a newspaper distributed throughout
the country, informing that it will examine the offers made by third parties
interested in obtaining a compulsory license, and establishing a term
of 30 days for such purpose. Once the application or applications are
filed, the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall make a decision
granting or rejecting the compulsory license. This decision may be
appealed pursuant to last paragraph of Section 42.
The decisions by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY on the
pertinence of the grant and those concerning the grant itself or, as
applicable, the rejection of compulsory licenses, shall be adopted within
a term not exceeding 30 days.
SECTION 45
The NATIONAL EXECUTIVE POWER shall grant the compulsory licenses motivated
by what is provided for in Section 45 of the Law, through the intervention
of the MINISTRY OF ECONOMY AND PUBLIC WORKS AND SERVICES, the NATIONAL
INSTITUTE OF INDUSTRIAL PROPERTY, and, when applicable, the MINISTRY OF
HEALTH AND SOCIAL WELFARE and the MINISTRY OF DEFENSE, within the framework
of the competences assigned to them by the Law of Ministries.
SECTION 46
The decisions by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY, made within
the powers granted to it by Section 46 of the Law, may be appealed pursuant
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to the last paragraph of Section 42 of this Regulation.
SECTION 47
The grant of compulsory licenses shall be considered according to the
circumstances of each case, provided any of the grounds established by
the Law have occurred. They shall be extended to the patents related
to components and manufacturing processes which enable their exploitation
when any of the grounds therefor established by the Law are present, and
they shall be granted under the conditions established by Section 47 of
the Law.
SECTIONS 48-49 Not regulated
SECTION 50
TheNATIONALINSTITUTEOFINDUSTRIALPROPERTYshallestablishtheprocedure
and the way of ascertaining the economic and technical capacity, pursuant
to the rules in force issued by the competent authorities, to carry out
an efficient exploitation of the patented invention, understood in terms
of supply of the domestic market under reasonable commercial conditions.
CHAPTER VIII PATENTS OF ADDITION OR IMPROVEMENT
SECTION 51
The application for a compulsory license of a patent of addition shall
be granted by the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY, through a
founded decision, after the technical or economic importance of the
improvement of the discovery or invention has been ascertained. The
decisions made within the framework of this section may be appealed pursuant
to the last paragraph of Section 42 of this Regulation.
SECTION 52 Not regulated
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TITLE III ON UTILITY MODELS
SECTIONS 53-54 Not regulated
SECTION 55
It shall be understood that the novelty of the invention has not been
lost when the applicant himself has made known or disclosed abroad the
invention which is the subject matter of the utility model, within 6 months
prior to the filing of the application in the REPUBLIC OF ARGENTINA.
SECTIONS 56-57 Not regulated
SECTION 58
ThepertinentprovisionsofthisRegulationconcerningpatentsofinvention
shall be applied to the procedure regarding certificates of utility models.
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TITLE IV LAPSING OF PATENTS AND UTILITY MODELS
SECTIONS 59-61 Not regulated
SECTION 62
The final decisions taken under the provisions of Title IV of the Law
may be appealed pursuant to the last paragraph of Section 42 of this
Regulation.
SECTIONS 63-66 Not regulated
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TITLE V ADMINISTRATIVE PROCEDURES
CHAPTER I PROCEDURES
SECTIONS 67-69 Not regulated
SECTION 70
Theadministrative-technicalinformationcontainedinthefilesofapatent
application is secret, and the officers of the NATIONAL PATENT OFFICE
and the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall not permit that
such information be disclosed or used in any manner by unrelated third
parties, or made publicly known. They shall also ensure that such
information is not made available to those spheres of activity in which
it is generally used.
Any person violating such secrecy shall be liable to the pertinent legal
actions, in addition to their dismissal and payment of a fine if they
are employees of the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY or of the
Administration or Agency which, due to technical reasons, have necessity
of participating, without prejudice to the provisions set forth in Sections
157, 172, and 173 of the Criminal Code of the Nation. The administrative
inquest or judicial proceeding may be brought officially or at the request
of interested party.
SECTION 71 Not regulated
CHAPTER II PETITIONS FOR RECONSIDERATION
SECTION 72
The filing of a petition for reconsideration as established by Section
72 of the Law, shall not authorize the filing of the other administrative
or judicial recourses that might be pertinent by application of the
provisions of the Law or of Law No. 19.549 and its Regulatory Decree 1759/72
(1991 Unified Text).
SECTIONS 73-74 Not regulated
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TITLE VI VIOLATION OF THE RIGHTS GRANTED BY THE PATENT AND THE UTILITY
MODEL CERTIFICATE
SECTIONS 75-82 Not regulated
SECTION 83
The precautionary measures and the requirements for their application,
as established by Section 83 of the Law, shall not exclude the adoption
of other precautionary measures under the terms established in the
substantive or procedural legislation applicable in each case.
SECTIONS 84-89 Not regulated
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TITLE VII ON THE ORGANIZATION OF THE NATIONAL INSTITUTE OF INDUSTRIAL
PROPERTY
SECTION 90
The NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall be in charge of
performing the activities incumbent on the State regarding Industrial
Property matters.
SECTION 91
The structure of the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall be
constituted by the following bodies:
1. Board of Directors
2. Internal Surveillance Committee (Auditor)
3. Honorary Advisory Committee
4. National Patent Office
5. Offices
The Board of Directors is the highest governing body, and it has the duties
of management and control of the INSTITUTE’s activities.
The Board of Directors shall consist of one President, one Vice-President,
and one alternate member.
The President of the Board of Directors shall represent the INSTITUTE.
In case of absence, he shall be replaced by the Vice-President.
The Surveillance Committee shall have the duties established by Title
VI of Law No. 24.156 and its regulatory provisions.
SECTION 92
The duties of the Institute, in addition to those established by the Law,
will be as follows:
a) to carry out administrative duties related to the recognition and
maintenance of the legal registers of the various aspects of industrial
property, embracing the handling and resolution of applications and the
conservation and publicity of documentation;
b) to divulge, on a periodical basis, technological information which
has been the subject of registration, without detriment of other kinds
of publications it considers pertinent. For this purpose, it shall keep
its own data bank connected to international data banks on the subject
and to foreign industrial property offices;
c) to propose the accession of the REPUBLIC OF ARGENTINA to those
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international conventions not yet subscribed, and in general, to favour
the development of international relationships in the field of industrial
property;
d) to promote initiatives and carry out activities leading to a better
knowledge and protection of industrial property both at national and
international levels;
e) to keep direct relationships with national and international agencies
and entities dealing with this subject;
f) to issue opinions on questions referred to industrial property as
required by the authorities of the EXECUTIVE, LEGISLATIVE, and JUDICIAL
POWERS OF THE NATION;
g) to fulfill any other duty that the legislation in force assigns thereto,
or that in the future, may be assigned thereto on subjects within its
competence.
SECTION 93
The duties of the Board of Directors, in addition to those established
by the Law, will be:
a) to propose the policy to be followed by the Institute, and to establish
the guidelines for its fullfilment;
b) to propose the estimated budget, and to carry out the annual settlement
thereof;
c) to approve the Annual Report on the INSTITUTE’s activities;
d) to submit to the NATIONAL EXECUTIVE POWER by means of the MINISTRY
OF ECONOMY AND PUBLIC WORKS AND SERVICES, the proposals of accession of
the REPUBLIC OF ARGENTINA to International Conventions related to
industrial property;
e) to deliberate and, if applicable, to adopt decisions regarding subjects
submitted for its consideration;
f) to create the NATIONAL AWARD TO INVENTION;
g) to call a meeting of the Advisory Committee at least once a month;
h) to issue all necessary resolutions relevant to its condition of supreme
body of the INSTITUTE, especially those related to the performance of
the duties established by Section 93 of the Law.
SECTION 94
The duties of the NATIONAL PATENT OFFICE will be:
a) to prosecute, examine and resolve applications for patents and utility
models;
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b) to handle nullity and lapsing procedures, and to control the working
of granted patents;
c) to issue certificates and authorized copies of the documents contained
in the files within its competence;
d) to take due note of the assignment of granted patents, which shall
besubmittedbywayofapublicinstrument,aswellasofpendingapplications,
for which a certification of assignor’s and assignee’s signatures shall
be required;
e) to give notice of decisions taken and of matters under prosecution
pursuant to Law No. 19.549 and its Regulatory Decree No. 1759/72 (1991
Unified Text);
f) to issue reports and to prepare statistics on the functioning, activities
and performance of the office;
g) to act jointly with the Department of Technological Information and
with the Legal Counsel of the INSTITUTE to appropriately apply
international conventions in the area.
SECTION 95 Not regulated
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TITLE VIII FINAL AND TEMPORARY PROVISIONS
SECTION 96
The amount established for fines, fees, and annuities may be modified
by resolution of the MINISTRY OF ECONOMY AND PUBLIC WORKS AND SERVICES.
SECTION 97
The term established in Section 35 of Law No. 24.481 shall be applicable
only to those applications filed after the date on which the above Law
comes into force.
SECTION 98
The authorization to make and market pharmaceutical products must be
appliedfortotheMINISTRYOFHEALTHANDSOCIALWELFARE,whilethatrelating
to agrochemicals must be applied for to the ARGENTINE INSTITUTE OF PLANT
HEALTH AND QUALITY operating under the jurisdiction of the SECRETARIAT
OF AGRICULTURE, FISHERY AND FOOD of the MINISTRY OF ECONOMY AND PUBLIC
WORKS AND SERVICES.
SECTION 99 Not regulated
SECTION 100
No applications for patents on pharmaceutical products will be accepted
when the first applications thereof in the country or abroad have been
filed before January 1st, 1995, except in those cases where after this
date applicants claim a priority date, as established by the Paris
Convention. The first applications serving as the basis for the
commencement of the prosecution in the Republic of Argentina shall in
no case be dated before January 1st, 1994. The same criteria shall be
followed in the cases of amendment or conversion of process patent
applications into pharmaceutical product patent applications.
SECTION 101
I.Asregardsinventionsofpharmaceuticalproducts,theNATIONALINSTITUTE
OF INDUSTRIAL PROPERTY shall implement the following procedure for the
filing of patent applications:
a) As from January 1st, 1995, patent applications will be received.
b) As from January 1st, 1995, such applications shall be treated as the
rest of those applications in other fields of technology insofar as
patentability, priority and claims are concerned.
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c) Once the transitional period established in Section 100 of the Law
has elapsed, the patent shall be granted, if applicable, for a term of
20 years calculated from the date of filing of the application.
II. As from the date of expiry of the transitional period, whoever petitions
for the limitation of the resources available to the owner of rights over
protected subject matter, should have commenced the acts of exploitation,
or should have made a significant investment with a view to commencing
such acts before January 1st, 1995. Upon verification of such fact, the
owner of the patent shall be entitled to receive the compensation
established by Section 101, third paragraph of the Law. The authorization
cannot be granted if the owner of the patent guarantees the full supply
to the domestic market at the same actual prices. The provisions of this
paragraph shall apply except when their amendment is necessary to fulfil
decisions of the World Trade Organization which are binding upon the
Republic of Argentina.
III. The application for an exclusive marketing right during the
transitional period shall be filed with the NATIONAL INSTITUTE OF
INDUSTRIAL PROPERTY, accompanied by the necessary elements to certify
that:
a) the product is the subject of a patent application filed with the agency;
b) after January 1st, 1995, a patent application has been filed with the
purpose of protecting the same product in another country member of the
TRIP’S-GATT, verifying the coincidence between both applications;
c) after January 1st, 1995, a patent for such product has been granted
in that other country member of the TRIP’S-GATT;
d) after January 1st, 1995, the approval for the marketing of the product
in that other country member of the TRIP’S-GATT has been obtained.
Once the compliance with the above requirements has been verified, the
NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY shall issue a resolution on
the pertinence of the grant of exclusive marketing rights in the Republic
of Argentina for a term of 5 years calculated as from the approval for
marketing within the REPUBLIC OF ARGENTINA with the proviso that the permit
shall expire before such term if prior to such expiration, the patent
application filed with the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY is
granted or rejected, or if the marketing authorization is revoked.
The grant of exclusive marketing rights shall be subordinated to the
authorization by the competent agencies, pursuant to Section 98 of this
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Regulation.
SECTION 102
Patent applications filed abroad before the enactment of the Law, may
be filed with the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY on a special
form to be made up for such purpose and to be considered as an affidavit,
under the terms of Section 102 of the Law and pursuant to Section 100
of this Regulation.
SECTIONS 103-104 Not regulated
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