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Legislative Implementation of Flexibilities - Barbados

Title:Sections 26 and 27 of the Patents Act No. 18 of 26/07/2001
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

[Examination as to form.]

26.-(1) Where an application has been accorded a filing date, upon payment of the prescribed fee, the Director shall examine each application for a patent of invention to determine

(a) whether subsection (4) of section 17, if applicable has been complied with;

(b) whether the requirements concerning the petition in the application are in compliance with section 18 and the regulations;

(c) whether the requirements of subsection (2) of section 18 have been complied with, if applicable;

(d) whether the description, claims and, if applicable, drawings comply with the prescribed physical requirements for descriptions, claims and drawings; and

(e) whether the application contains an abstract.

(2) If, the Director determines that any requirement mentioned in subsection (1) has not been complied with, he shall require the applicant to make such corrections in his application as are necessary to comply with that requirement; and, if an applicant fails to make the required corrections, the Director shall, subject to subsection (3), refuse to grant the patent requested by the application.

(3) Where the correction required by the Director is the filing of an abstract, the Director may, upon payment of the prescribed fee, prepare the abstract for the application; but if the prescribed fee for an abstract remains unpaid after the expiration of the time prescribed for its payment, the Director shall refuse the requested patent.

(4) When a patent is refused under this section, notice of the refusal and the reasons

therefor shall be communicated to the applicant by the Director as soon as practicable.

[Examination as to substance.]

27.-(1) The Director shall examine each application for a patent of invention to determine

(a) whether the invention is an invention within the meaning of this Act;

(b) whether the invention is patentable within the meaning of sections 7 to 10;

(c) whether the invention is excluded from patentability under section 11;

(d) whether the description and the claims for the invention are in compliance with the requirements of subsection (2) of section 17, and the regulations;

(e) whether any drawings necessary for the understanding of the invention have been furnished in accordance with subsection (2) of section 17;

(f) whether the application complies with the requirements of this Act and the regulations regarding unity of invention;

(g) whether, if applicable, any amendment or any divisional application goes beyond the disclosure in the prior application as provided in section 21;

(h) whether the application has complied with any requirement made by the Director under section 22;

(i) whether the description and the claims for the invention are in compliance with the requirements of subsection (2) of section 17, and the regulations.

(2) If the Director determines that any requirement mentioned in subsection (1) has not been complied with in respect of an application, the Director shall notify the applicant accordingly and invite the applicant to submit any comments the applicant wishes to make regarding his failure to comply with that requirement; and an invitation made to an applicant under this section may include an invitation to amend or divide the application.

(3) Where, notwithstanding any comment, amendment or division of the application submitted to the Director by the applicant, the Director is of the opinion that a requirement mentioned in subsection (1) has not been complied with, the Director may refuse to grant a patent on that application; but any refusal to grant a patent and the reasons therefor must be communicated to the applicant in writing by the Director as soon as practicable.

(4) For the purposes of examination under subsection (1), the Director shall take into account

(a) the results of any international search and any International preliminary examination report submitted in accordance with the Patent Co-operation Treaty;

(b) any document submitted under paragraph (i) or (iii) of section 23(1)(b); or

(c) a search and examination report which was carried out upon the request of the Director by an external search and examination authority pursuant to subsection (5).

(5) For the purposes of the examination under this section the Director may transmit the application to a duly authorized authority with which an arrangement to that effect has been made by the Minister.

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