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Legislative Implementation of Flexibilities - Andean Community

Title:Articles 26 (b), (h) and (j), 28, 29, 46 and 75 (d) 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:Disclosure related flexibilities
Summary table:PDF

Provisions of Law

26. The application for a patent shall be filed with the competent national office and

shall contain the following:

(b) the description;

(h) where applicable, a copy of the access contract where the products or processes for which a patent is sought have been obtained or developed from genetic resources or products derived therefrom of which any of the member countries is the country of origin;

(j) where applicable, the certificate of deposit of biological material;

28. The description shall disclose the invention in a manner sufficiently clear and complete to be understood and for a person skilled in the corresponding technical field to be able to carry it out. The description of the invention shall state the name of the invention and include the following information:

(a) the technological sector to which the invention relates or applies;

(b) the previous technology known to the applicant that may be useful for understanding and examining the invention, and references to earlier documents and publications relating to the said technology;

(c) description of the invention in terms that allow the technical problem and the solution provided by the invention to be understood, with an explanation of the differences and possible advantages in relation to the earlier technology;

(d) an account of the drawings, if any have been filed;

(e) a description of the best method known to the applicant of carrying out the invention or putting it into practice, with the use of examples and references to the drawings where the latter are relevant; and

(f) a mention of the way in which the invention meets the condition of industrial applicability, if this is not clear from the description or the nature of the invention.

29. Where the invention relates to a product or process involving biological material, and the invention cannot be described in such a way as to be understood and carried out by a person skilled in the technical field, the description shall be completed with a deposit of the said material.

The deposit shall be made not later than on the filing date of the application in the member country or, where applicable, on the filing date of the application the priority of which is claimed. Deposits effected with an international depositary authority recognized under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure of 1977, or with another institution recognized by the national office competent in that connection, shall be considered valid. In such a case the description shall state the name and address of the depositary institution, the date of deposit and the deposit number assigned to it by the institution.

The deposit of biological material shall be valid for the purposes of the grant of a patent only if it is made in such a way that any interested party may obtain samples of the material not later than on the expiry of the period provided for in Article 40.

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.

75. The competent national authority shall decree the absolute invalidity of a patent at any time, either ex officio or at the request of any person, where:

(d) the patent does not disclose the invention as provided in Article 28 and where applicable in Article 29.

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