Patents

What's this?

The patent is a legal act that allows the owner to use an asset in an exclusive manner.

Article 66, paragraph 1 of the industrial property code specifies how: “patent rights for industrial inventions consist of the exclusive right to implement the invention and to profit from it in the State, within the limits and under the conditions of this code. "

 

What are the patentability requirements for the invention?

The patent can be granted if the invention meets the requirements of:

1) The novelty: Article 46 paragraphs 1 and 2 of the Criminal Code specifies how the concept of novelty means that where, at the time of the request for protection, the invention object of the application is not included in the state of the art, i.e. that it has not been disclosed or made accessible to the public through a description, use or any other means.

2) Lawfulness: Article 50 of the Italian Criminal Code specifies how inventions whose implementation is contrary to public order and morality cannot constitute patent applications.

3) Industriality: Article 49 of the Italian Criminal Code specifies how an invention is considered suitable for industrial application if its object can be manufactured or used in any kind of industry, including agriculture.

4) The inventive step: Article 48 of the Italian Criminal Code specifies how an invention is considered to involve an inventive step if for a person skilled in the art, it is not evident from the state of the art. In fact, the invention is not enough that it is new, but it must also possess a level of ingenuity such that it concretely distinguishes it from what already existed.

5) Sufficient description: this requirement, governed by Article 51 of the Italian Criminal Code it does not only concern the product on which protection is requested but also the description of the application, or the drafting of the document to propose the application. Specifically, each invention must be described in a sufficiently clear and complete way for each person skilled in the art to implement it and must be distinguished by a title corresponding to its object.

 

 

What is not patentable?

All that is defined in art. 45 paragraph 2 c.p.i., i.e. discoveries, scientific theories, principles or methods for intellectual or commercial activities.

 

What are the differences between a patent and a utility model?

The utility model is a type of protection that the legislator wished to regulate in order to recognize minor and non-trivial inventions. This protection is not present in all states as some of them only accept the distinction between patent and ornamental model.

The requirements of the application for protection are the same as for the patent, but if it were granted it would last 10 years, unlike the patent which lasts 20 years.

From a substantial point of view, the utility model consists in the new form of an industrial product, which gives it a particular ease of application or use and effectiveness, for this reason the model is seen as a minor invention compared to the patent.

 

How long does it take to get a patent registered?

Filing> 0 months: first national filing (the Priority Date with which the Priority Right begins is acquired);

Filing> 9 months: sending of the research report on the invention by the EPO (European Patent Office) and possibility of responding to any remarks made by the examiner, defending the originality and innovativeness of one's own invention with respect to the state of the art ;

Filing> 12 months: deadline for extending the patent application abroad with an international application (via PCT application, European patent, US patent, etc.) keeping the priority date acquired

Filing> 18 months: publication of the invention by the offices that received the patent application;

Filing> 24 ÷ 36 months: granting (or refusal) of the patent application. In case of refusal, the applicant has 60 days to appeal.

 

How long does the concession last?

The granting of a patent has a duration of 20 years.

 

Who can deposit it?

The patent application can be filed by anyone, whether by individuals without a VAT number or by companies.

The patent application can also be filed simultaneously by several people, whether they are inventors or financiers, who must specify their respective percentages of ownership of the future concession in the application for protection.

It may happen, in some special cases such as those of the employee's invention, that the right to the patent belongs to the employer and not to the inventor.

 

What are the national rules governing the patent?

The rules governing the trademark are the Civil Code in Articles. 2584-2591, and the Industrial Property Code D.lgs. 10 February 2005, n. 30 and subsequent amendments.

 

What are the differences between national, community and international patent applications?

The national patent protects the invention in the territory of the Italian state.

The Community patent is not a single patent but a bundle of patents for each state that protects the invention in the territory of the EC.

The international patent application is a procedure called PCT (Patent Cooperation Treaty) which does not allow the granting of a unitary patent but allows a patent application in each of those countries that have joined the PCT.

 

Can the use of a patent be granted to third parties?

The owner of the patent can grant its use to third parties through license agreements. This can be of three types:

 

• exclusive license: only one licensee has the right to use the patented technology, which cannot be used by the owner of the patent

• single license: only one licensee, together with the owner of the patent, has the right to use the patented technology

• non-exclusive license: different licensees, probably in different areas, and the owner of the patent have the right to use the patented technology.

 

 

How is it deposited?

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DO YOU HAVE MORE QUESTIONS?

We reply to 0733818125 or to the email tiziano@studiolegaleluzi.it