Legislative Implementation of Flexibilities - Portugal
| Title: | Articles 62 (1) (b) and (4), 63, 73 (1) (d) and 113 (d) 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: | Disclosure related flexibilities |
| Summary table: |  |
Provisions of Law
Article 62
Documents to be submitted
1 The application shall be accompanied by the following information in Portuguese:
b) Description of the invention;
4 The description shall give a brief, clear indication, with no reservations or omissions, of everything making up the invention and contain a detailed explanation of at least one way of making the invention, so that any person skilled in the art may carry it out.
Article 63
Biotechnological inventions
1 If an invention concerns biological material not accessible to the public and cannot be described in the patent application so that a person skilled in the art could carry it out, or entails the use of a material of this type, the description shall only be considered sufficient for the purpose of obtaining a patent, if:
a) The biological material has been deposited up to the date of submission of the patent application at a recognized depositary institution, such as international depositary institutions that have acquired this status under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure of 28 April 1977;
b) The application as filed gives such relevant information as is available to the applicant on the characteristics of the biological material deposited;
c) The depositary institution and the accession number of the deposited biological material are stated in the application.
2 Access to the deposited biological material must be ensured by submission of a sample:
a) By the first publication of the patent application, solely to persons who are so entitled under national law;
b) Between the first publication of the patent application and the grant of the patent, to any person so requesting or, at the request of the depositor, solely to an independent expert;
c) After the grant of the patent, and even in the event of cessation of the patent due to invalidity or expiry, to anyone requesting it.
3 The material will only be handed over if the person requesting it undertakes, for the duration of the patent:
a) Not to allow access by third parties to any sample of the deposited biological material or a material derived from it;
b) Not to use any sample of the deposited biological material or of a material derived from it, except for experimental purposes, unless the applicant or patent holder expressly waives this undertaking.
4 If the patent application is refused or withdrawn, access to the deposited material may, at the depositor's request, be confined to an independent expert for 20 years as of the date of submission of the patent application, in which case paragraph 3 applies.
5 The requests from the depositor referred to in paragraph 2(b) and 4 may only be submitted up to the date on which the technical preparations for publication of the patent application are considered complete.
6 If biological material deposited as set forth in the previous paragraphs ceases to be available at the recognised depositary institution, a new deposit of the material is allowed under the conditions of the Budapest Treaty.
7 Any new deposit shall be accompanied by a statement signed by the depositor certifying that the biological material in the new deposit is identical to that originally deposited.
Article 73
Reasons for refusal
1 In addition to the provisions of Article 24, a patent shall be refused if:
d) Its object is not described in such a way as to allow the invention to be carried out by a person skilled in the art;
Article 113
Nullity
In addition to the provisions of Article 33, patents shall be null and void in the following cases:
d) If its object has not been described in such a way that anyone skilled in the art can carry it out.