Legislative Implementation of Flexibilities - Portugal

Title:	Sections 117-120 of the Industrial Property Code (approved by Decree Law 36/2003 of 5 March and attended by Decree Law 318/2007 of 2s September, Decree-Law 360/2007 of 2 November, Decree-Law 143/2008 of 25 July and Law 16/2008 of 1 April)
Field of IP:	Patents
Type of flexibility:	Utility models
Summary table:

Provisions of Law

Article 117 Object

1) New inventions involving an inventive step can be protected as utility models, if they have an industrial application.

2) The aim of utility models is to protect inventions by means of a simpler, speedier administrative procedure than that for patents.

3) An invention that abides by the conditions established in paragraph 1 can be protected by a utility model or patent, as the applicant chooses.

4) The same invention may be simultaneously or successively the subject of a patent and utility model application.

5) The successive submission of applications referred to in the previous paragraph may only be allowed within one year of the date of submission of the first application.

6) In the cases set forth in paragraph 4, a utility model shall expire after grant of a patent for the same invention.

Article 118 Limitations as to object

Article 52 is applicable to utility models.

Article 119 Limitation as to Utility Model

The following cannot be the object of a utility model:

a) Inventions whose commercial exploitation is against the law or contrary to public policy, public health or morality and their exploitation may not be considered as such due to the simple fact that it is forbidden by law or regulations;

b) Inventions involving biological material;

c) Inventions involving chemical or pharmaceutical substances or processes.

Article 120 Grant requirements

1) An invention shall be considered new if it does not form part of the state of the art.

2) An invention shall be considered as involving an inventive step, if it meets one of the following requirements:

a) If it is not obvious to a person skilled in the art;

b) If it offers a practical or technical advantage for the manufacture or use of the product or process in question.

3) An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry or in agriculture.

4) The provisions of Articles 56 and 57 apply to utility models with the necessary adaptations.