Requirements For Obtaining A Patent

• Published date: 27 March 2024
• Subject Matter: Intellectual Property, Patent
• Law Firm: Le'o Advogados Associados
• Author: Mr Luiz Alberto Rosenstengel

A patent is a technical document with legal purposes. Technical because it must describe an industrial creation and legal because it defines a right to exclude unauthorized third parties from reproducing the invention¹.

Preliminarily, it must be clarified that in the national territory patents can be of two types: invention² and utility model³. It is important to highlight that creations of an ornamental nature (design) when applied to industrializable products can be protected by industrial design registration⁴.

It should be noted that the application for filing a patent application consists of a descriptive report, claims, drawings and summary. In patent applications that deal with products (articles, utensils, tools, devices, equipment, etc.), as well as in utility model applications, drawings are mandatory.

For a patent to be granted, its object must meet the requirements of novelty, inventiveness and industrial applicability.

Novelty is understood as something that is not understood in the state of the art. In addition, the state of the art is 'all that made accessible to the public before the date of filing of the patent application'.

Here, caution must be exercised regarding the interpretation of 'making it accessible to the public', which is broader than being published, that is, it is enough for any interested person to be able to freely obtain this information.

For information to be considered part of the prior art, it must meet the following requirements:

• certainty (have a proven date of when it was generated);
• sufficiency (has a description that allows comparison with the object submitted for patenting) and
• advertising (has been made available to the general public).

The inventive effort is relative to the nature of the patent under examination: if an invention patent the requirement is that the creation characterizes inventive activity, if a utility model patent the requirement is that the model characterizes an inventive act. In other words, to characterize inventive activity, creation cannot be considered as a mere evident or obvious result of the state of the art, that is, a mere adaptation, modification or improvement resulting from logical reasoning of what already...