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Legislative Implementation of Flexibilities - Portugal

Title:Articles 65, 65A, 66 and 68 of the Industrial Property Code, Decree-Law No. 36 of 05/03/2003 as last amended by Law No. 16 of 01/04/2008
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Article 65

Examination of form and limitations

1 After a patent application has been submitted to the National Industrial Property Institute, an examination of the form and limitations of the object or patent shall be performed within one month to check that it meets the requirements of Articles 52, 53 and 61 to 63

2 If the National Industrial Property Institute finds that the application contains formal irregularities or that there are limitations regarding the object or patent, the applicant shall be given two months to correct them.

3 If he does not do so within the specified time, the application shall be refused and the decision shall be published in the Industrial Property Bulletin, in which case the publication set forth in Article 66 will not be made.

Article 65-A

Search Report

1 After the examination set forth in the previous article, there shall be a search of the state of the art based on all the elements in the case file in order to assess whether the novelty and inventive step requirements have been met.

2 The search report, which is not binding, shall be sent to the applicant immediately.

Article 66

Publication of the application

1 If the application is in order or has been regularised under Article 65(2), it shall be published in the Industrial Property Bulletin with a copy of the summary and the international patent classification.

2 The publication referred to in the previous paragraph shall be made 18 months after the date of submission of the patent application at the National Industrial Property Institute or of the priority claim.

3 The publication may be brought forward at the applicant's express request.

4 After publication, anyone may request a copy of the elements in the file.

5 Without prejudice to the previous articles, any claims or expressions violating Article 61(2) shall be ex officio deleted in the patent and in any publications resulting from the application.

Article 68

Examination of invention

1 The National Industrial Property Institute shall promote the examination of an invention, considering all elements in the file.

2 If no opposition has been filed within the time limit the examination report shall be drafted within one month.

3 If an opposition has been filed, the report shall be drafted within one month of the submission of the last part of the procedure referred to in Article 17.

4 If the examination shows that the patent can be granted, the respective notice shall be published in the Industrial Property Bulletin.

5 If the examination shows that the patent cannot be granted, the report and copies of all the elements mentioned in it shall be sent to the applicant, who shall be given two months to respond to the remarks made.

6 If, after the applicant's response, it is found that there are still objections to the grant of the patent, the applicant shall be given one month to clarify the points on which doubts persist.

7 If, as a result of the applicant's response, it is found that the patent can be granted, the respective notice shall be published in the Industrial Property Bulletin.

8 If the response to notifications is not considered sufficient, a notice of refusal or partial grant shall be published, in keeping with the examination report.

9 If the applicant does not respond to the notification, the patent shall be refused and the respective notice shall be published in the Industrial Property Bulletin.

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