Database on Flexibilities in the Intellectual Property System

Legislative Implementation of Flexibilities - Portugal

Title:

Articles 52 (1) (a) and (b), 53 (3) (a) and (b), 54 (1) (c), (e) and (f), (2), (3) and (4) 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:

Patentability of substances existing in nature

Summary table:

Provisions of Law

Article 52

Limitations on object

1 The following are exceptions to the previous article:

a) Discoveries, scientific theories and mathematical methods;

b) Materials or substances already existing in nature and nuclear materials;

Article 53

Limitations on patent

3 The following are also not patentable:

a) The human body, at the various stages of its formation and development and the simple decoding of one of its elements, including the discovery of a sequence or partial sequence of a gene, without prejudice to (1)(c) of the following article;

b) Plant and animal varieties and essentially biological processes for obtaining plants or animals;

Article 54

SPECIAL CASES OF PATENTABILITY

1 The following may be patented:

c) A new invention that involves an inventive step and is susceptible of industrial application relating to any isolated element of the human body or produced in any other way by a technical process, including a sequence or partial sequence of a gene, even though the structure of this element is identical to that of a natural element, provided that the industrial application of a sequence or partial sequence of a gene is expressly observed and specifically described in the patent application;

e) A biological material isolated from its natural environment or produced on the basis of a technical process, even if it pre-exists in a natural state;

f) An invention relating to a microbiological process or other technical processes or products obtained by means of these processes.

2 An essentially biological process for obtaining plants or animals is any process that consists wholly of natural phenomena, such as crossing or selection.

3 A microbiological process is any process involving or performed upon or resulting in microbiological material.

4 Biological material is any material that contains genetic information and is capable of reproducing itself or being reproduced in a biological system.