Exclusivity In The Commercialization Of Products, Solutions From An Intellectual Property Perspective

Most clients' questions that are commonly addressed by Intellectual Property department attorneys refer to product's protection; thus, certain queries such as "How do I patent my product?" "Can I protect my trademark through a patent?" "How do I protect it to prevent someone else from doing the same?" are highly usual in our premises.

Unfortunately, the existing confusion between brand and product usually makes clients believe that if they register the trademark they are effectively protecting the product and that upon trademark registration no one is allowed to do what clients can. This is a misconception, not because there is no protection at all but because the brand exclusively protects the name given to a product rather than the product, service or process per se.

Thus, this article intends to briefly analyze all intellectual property resources available to protect the product as such. Particularly, patents, trade secrets and health registrations are three tools which are related in one way or the other to the product per se.

Patents are by definition a direct and exclusive protection on products or procedures. Specifically, article 1 of the Patents Act sets forth a basic definition of patent-protected inventions, as follows "any creation of the human intellect capable of being applied to the industry, which meets the patentability conditions set forth by this law. Such creation may consist of a product, a machine, a tool or a manufacturing procedure".

However, non-patentable inventions and the characteristics of patentability conditions as defined by the Law are a misleading part of patent regulations. These conditions are not usually known by people, but if known they would prevent them from patenting their products.

The first element is a regulatory development categorizing a number of products as "non invention" or...