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Changes Introduced In Patents And Designs By Chilean Draft IP Law

Author:Ms Marta García
Profession:Moeller IP Advisors
 
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On October 2, 2018, a new draft law was sent to the Chilean Congress to update the Law No. 19,039 on Industrial Property, the Law No. 20,254, which establishes the National Institute of Industrial Property and the Criminal Procedure Code.

The main changes introduced by the draft law regarding patents and industrial designs are the following:

Patents

Provisional patents

The draft law includes the possibility of applying for provisional patent applications, which will provide applicants with a term of 12 months to proceed with the filing of the corresponding definitive application.

Fees for additional pages

The draft law establishes that any patent application exceeding 50 pages must pay, together with the filing fee, an additional fee of 1 Monthly Tax Unit - which at the end of 2018 was equivalent to approximately 71.5 USD - for every 20 additional pages or fractions of pages.

Limitation of supplementary protection

According to Article 53 BIS of Law 19,039, any patent (in any technical field) can be eligible for supplementary protection, provided that:

- the grant of the patent exceeded five years from filing or three years from the request for examination, whichever occurs after; or

- the grant of the marketing authorization exceeded one year since the request was filed.

It is also established that the supplementary protection must be requested within six months after patent grant or after marketing authorization grant, as long as there has been an unjustified administrative delay.

The current legislation states that only the period proven as unjustified will be granted and does not establish a maximum extension that can be granted.

The draft law establishes a reduction from the current six months to 60 days from patent grant or from marketing authorization grant to request the supplementary protection.

Moreover, the draft law limits the supplementary protection that can be granted to a maximum term of five years.

Exceptions to patent rights

A series of exceptions or limitations to the rights granted by a patent to its owner are introduced by the draft law to Article 49 of IP Law No. 19,039, stating that the rights conferred by a patent will not be extended to:

Acts performed privately and without commercial reasons. Acts performed exclusively for experimental reasons relative to the object of the patent. Preparation of medicines under medical prescription for individual cases. Use on foreign vessels of means which are the object of the...

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