Legislative Implementation of Flexibilities - Andean Community

Title:	Articles 44-48 of the Decision No. 486 of 14/09/2000 of the Commission of the Andean Community - Common Industrial Property Regime
Field of IP:	Patents
Type of flexibility:	Substantive examination
Summary table:

Provisions of Law

44. Within a period of six months following the publication of the application, regardless of whether or not oppositions have been filed, the applicant shall request that the invention be examined for patentability. Member countries may charge a fee for the conduct of that examination. Where the said period expires without the applicant having requested examination, the application shall lapse.

45. If the competent national office finds that the invention is not patentable or does not comply with one of the requirements laid down in this Decision for the grant of a patent, it shall notify the applicant accordingly. The applicant shall respond to such notification within a period of 60 days from the date thereof. That period may be extended once for a period of 30 additional days.

The competent national office may notify the applicant two or more times under the foregoing paragraph if it considers such action necessary.

Where the applicant fails to respond to the notification within the periods specified, or where in spite of the response there are still obstacles to grant, the competent national office shall refuse the patent.

46. The competent national office may solicit reports from experts or from scientific technological bodies considered suitable, so as to have their opinion on the patentability of the invention. It may likewise, if it sees fit, solicit reports from other industrial property offices.

Where necessary for the purposes of the patentability examination the applicant shall, at the request of the competent national office, submit, within a period not exceeding three months, one or more of the following documents relating to one or more filed foreign applications relating wholly or partly to the same invention as that being examined:

(a) a copy of the foreign application;

(b) a copy of the findings of novelty or patentability examinations carried out in relation to that foreign application;

(c) a copy of the patent or other protection title that has been granted on the basis of that foreign application;

(d) a copy of any judgment or decision by which the foreign application has been rejected or denied;

(e) a copy of any judgment or decision by which the patent or other protection title granted on the foreign application has been cancelled or invalidated.

The competent national office may recognize the results of examinations referred to under subparagraph (b) above as being sufficient to prove compliance with the conditions governing patentability of the invention.

Where the applicant fails to submit the documents requested within the period specified in this Article, the competent national office shall refuse the patent.

47. At the request of the applicant, the competent national office may suspend the processing of the patent application where any document that should be filed under subparagraphs (b) and (c) of Article 46 has yet to be received or is pending for a foreign authority.

48. If the final examination is favorable, the patent shall be granted. If it is only partly favorable, the title shall be granted only in respect of those claims that have been accepted. If it is unfavorable the grant of a patent shall be refused.