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PATENT AND UTILITY MODELS LAW Nº 24.481
AMENDED BY LAW Nº 24.572 (T. O. 1996) AND LAW 25.859
TITLE I
GENERAL PROVISIONS
ARTICLE 1. Inventions of every kind and field of production shall confer to their authors the rights and obligations that are specified in the present Law.
ARTICLE 1.- All the rights and duties acknowledged by the application of the Law shall be acknowledged to an equal extent to foreign physical or juridical persons with domicile by choice or special domicile in the argentine republic under the terms and within the scope provided in Laws Ns. 17.011 and 24.425.
ARTICLE 2. The ownership of the invention shall be attested to the granting of the following titles of industrial property:
a) Patents of invention; and
b) Certificates of utility model.
ARTICLE 2.- The patent applications and other documents that may be attached to the same shall be filed:
a) Directly before the NATIONAL ADMINISTRATION OF PATENTS;
b) Before the provincial representations that the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY authorized for that purpose.
ARTICLE 3. Natural or foreign natural or artificial persons or legal entities, having their actual or legal domicile duly established in the country, shall be able to obtain the titles of industrial property regulated in the present Law.
ARTICLE 3.- Without ruling.
TITLE II
THE PATENTS OF INVENTION
CHAPTER I
PATENTABILITY
ARTICLE 4. - The inventions of products or processes shall be patentable, provided that they are new, that they involve an inventive activity and that they are apt for industrial application.
a) For the effects of this law any human creation enabling the transformation of matter or energy for its exploitation by man shall be considered an invention.
b) Likewise, any invention not included in the state of the art shall be considered novel.
c) It shall be understood as “state of the art” the totality of technical knowledge that has been made public before the date of filing of the patent application or, in its case, of the acknowledged priority, by means of an oral or written description, exploitation or by any other means of diffusion or information in the country or abroad.
d) Inventive activity shall be considered to exist when the creative process or its results are not deduced from the state of the art in an evident way for a person normally skilled in the corresponding technical matter.
e) Industrial application shall exist whenever the object of the invention leads to the obtainment of an industrial result or product, understanding the term industry as comprehensive of agriculture, industry pertaining to forestry, industry pertaining to cattle breeding, fishing industry, mining, transformation industries in strict sense, and services.
ARTICLE 4.- In order to obtain a patent of invention, an application shall be filed before the NATIONAL ADMINISTRATION OF PATENTS of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY depending upon the MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS, said application is referred to in article 13 of the Law according to what has been established in the following articles.
ARTICLE 5.- The disclosure of an invention shall not affect its novelty, as long as within one (1) year before the date of the filing of the patent application, or in its case of the acknowledged priority, the inventor or his successors in law have disclosed the invention by any means of communication or had exhibited it in national or international exhibitions. When the corresponding application is filed, evidentiary documents shall be included in the conditions which shall be established in the regulation of this Law.
ARTICLE 5.- If the inventor had already disclosed the invention within one year previous to the filing date of said application, according to the admitted in article 6 of the Law, said inventor shall state said fact in written form and file, together with the patent application, the following:
a) one reproduction or copy of the means of communication through which the invention was disclosed (if it were a graphic or electronic means)
b) a mention of the means and its geographic location, of the disclosure and the date of said disclosure (if it were an audiovisual means);
c) a certified evidence of the inventor’s or the applicant’s participation in the national or international exhibition in which the invention was disclosed, the date and the scope of the disclosure.
The applicant’s statement shall have the value of a sworn statement and in case of being false, the right to obtain the patent or the certificate of utility model shall be lost.
ARTICLE 6.- The following shall not be considered inventions for the purposes of this Law:
a) Discoveries, scientific theories and mathematical methods;
b) Literary or artistic work or any other aesthetic creation, as well as scientific works;
c) Plans, rules and methods for the performance of intellectual activities, for games or economical and commercial activities, as well as for computer programs;
d) The ways of presenting information;
e) The methods of surgical, therapeutic or diagnostic treatment applicable to the human body and the ones relative to animals;
f) The juxtaposition of known inventions or mixtures of known products, their variation in shape, dimensions or material, unless their combination or fusion is such that they cannot function separately or that the qualities or characteristic functions of same are modified so as to obtain a result not obvious for a technician in the matter; and
g) All kinds of living matter and substances previously existing in Nature.
ARTICLE 6.- Plants, animals and essentially biological processes for their reproduction shall not be patentable.
ARTICLE 7.- The following shall not be patentable:
a) The inventions whose exploitation (working) in the territory of the ARGENTINE REPUBLIC must be prevented in order to protect the public order or morality, the health or life of persons and animals or to preserve plants or to prevent serious damage to the environment.
b) The totality of biological and genetic material, existing in Nature or their replica, in the biological processes implicit in animal, plant and human reproduction, included the genetic processes related to the material capable of conducting its own duplication in normal and free conditions, such as it occurs in Nature.
ARTICLE 7.- The NATIONAL EXECUTIVE may forbid the manufacturing and marketing of the inventions when the commercial exploitation in its territory must be necessarily prohibited in order to protect the public order or morality, the health and life of persons and animals, to preserve plants or the prevent serious damage to the environment.
CHAPTER II
RIGHT TO THE PATENT
ARTICLE 8.- The right to the patent shall pertain to the inventor or his successors in law who shall have the right to assign or transfer it through any lawful means and to make license agreements. The patent shall confer to its owner the following exclusive rights, without prejudice to what is ruled in articles 36 and 100 of the present Law:
a) When the subject matter of a patent is a product, to prevent third parties from effecting, without consent, acts of manufacturing, using, offering for sale, selling or importing the product which is the subject object of the patent.
b) When the subject matter of a patent is a process, to prevent third parties from effecting, without consent, the act of utilization of the process and the acts of using, offering for sale, selling or importing to these ends the product obtained directly by means of said process.
ARTICLE 8.- The applicant may mention in the application the name of the inventor or inventors and require the inclusion of the same in the publication of the patent application, to mention it in the issued Industrial Property title and in the publication of the patent or utility model.
If the owner of the patent became aware of the import of goods under infringement in accordance with the Law, the same shall be lawfully able to start actions in the legally corresponding administrative or judicial headquarters.
ARTICLE 9.- Unless evidence to the contrary, it shall be presumed as inventor the natural person or persons designated as such in the patent or utility model application. The inventor or inventors shall have the right to be mentioned in the corresponding letters patent.
ARTICLE 9.- The inventor or inventors who assign their rights, may present at any moment during the proceedings and require being mentioned in the corresponding title and shall accredit their status. As from said presentation of said person declaring to be the inventor, a period of THIRTY (30) running days shall be given to the licensee. If there exists an objection, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall decide within a term of THIRTY (30) running days a from the answering of the statement or the production of evidence being required for the clarifying of the invoked facts.
ARTICLE 10.- Inventions developed during a labor relationship:
a) The ones effected by the worker during the course of the person’s contract, or working or service relationship with the employer, having as total or partial object the performance of inventive activities, shall pertain to the employer.
b) The employee, author of the invention upon the above mentioned case, shall have the right to a supplementary remuneration for his inventive work, if his personal contribution to the invention and the importance of the same for the enterprise and employer, exceeds in an evident manner the explicit or implicit contents of his relationship or contract. In the absence of the conditions stipulated in clause a), when the worker obtains an invention in relation with his professional activity in the company and in its obtainment would have predominantly weighed the knowledge acquired within the company or the utilization of means provided by the same, the employer shall have the right of ownership of the invention or make reservation of the right of exploitation of the same. The employer shall exercise such option within NINETY (90) days as from the moment when the invention was obtained.
c) When the employer undertakes the ownership of an invention or reserves for himself the right of exploitation of the same, the worker shall have the right to a fair economical compensation, established in accordance with to the industrial and commercial importance of the invention, bearing in mind the worth of the means or knowledge facilitated by the company, and the contribution of the employee; upon the assumption that the employer grants a license to third parties, the inventor shall have the right to claim from the owner of the patent the payment of up to FIFTY PERCENT (50%) of the royalties effectively received by the former.
d) An industrial invention shall be considered as developed during the performance of a labor contract or of a rendering of services contract, when the patent application is filed up to ONE (1) year after the date in which the inventor left the employment in whose activity field the invention was obtained.
e) The labor inventions not carried out under the circumstances foreseen in clauses a) and b), shall pertain exclusively to the author of the same.
f) Any anticipated waiver of the employee to the rights conferred in this article shall be null.
ARTICLE 10.- It shall be considered that the right to obtain a patent pertains to the employer when the performing of inventive activities has been stipulated as a total or partial object of the employee’s activities.
For the effects of the second paragraph of clause b) of Article 10 of the Law it shall only be understood in the development of the invention, that it has been mainly influenced by the knowledge acquired in the company or the utilization of means supplied by the same, when the invention: concerns the employer’s activities, and it is related with the specific tasks developed by the inventor working for the employer.
When the invention has been realized under the conditions indicated in the second paragraph of clause b) of article 10 of the Law, if the employer ceased the exertion of his right for option within the period established in the last paragraph of the same clause, the right of ownership of the same shall correspond to the inventor -employee-.
When the invention has been realized by an employee under the conditions indicated in the second paragraph of clause b) of Article 10 of the Law, and before the granting of the patent, the inventor shall make a written petition of his right of ownership including the reasons of the same and in a sealed envelope, before the NATIONAL ADMINISTRATION OF PATENTS or before the corresponding provincial delegations entitled by the former. Respecting the same, the Patent Commissioner shall convey the parts to submit in written form their arguments within an unextendable term of FIFTEEN (15) days as from the notification. Notwithstanding the same, the ownership of the employer shall be maintained until the contrary is verified. Within the following THIRTY (30) days to the submission or the production of the evidence, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall issue a decision mentioning the grounds on which the same was made, indicating to whom corresponds the right to apply for the patent, which shall be notified to the parts through a proving means.
The decision of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY that function in the ambit of the MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS shall be appealable before the Civil and Commercial Federal Justice with territorial jurisdiction in the address of the working location, within TWENTY (20) working days as from the notification issued by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY .
Being an invention made under the conditions indicated in the second paragraph of clause b) of article 11 of the Law, if the employer should not exercise his right for option within the term established in the last paragraph of the same clause, the right of ownership of the patent shall correspond frankly to the inventor-employee.
In the case of disagreement between the employee and the employer about the amount of the supplementary remuneration or the economical compensation foreseen in the first paragraph of clause b) and in clause c) of article 10 of the Law, any of them, respectively shall, anytime, require the intervening of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY to solution the dispute, expressing their reasons. The requirement shall be communicated to the other part for the term of TEN (10) days as from the notification. Within the following TWENTY (20) days as from the answering of the notification or the production of the offered evidence, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall issue a decision mentioning the grounds of the same, establishing the supplementary remuneration or economical compensation which, at the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY‘S criteria, is fair, which shall be notified to the parts in a proving manner.
The decisions of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY referred to in the last two paragraphs shall be appealable before the CIVIL AND COMMERCIAL FEDERAL JUSTICE with territorial jurisdiction in the address of the working location, within a term of TWENTY (20) working days as from the notification. The appeals shall no have suspensive effects.
ARTICLE 11.- The right conferred by the patent shall be determined by the first claim approved, which defines the invention and delimits the scope of the right, the description and the drawings or plans, or in its case, the deposit of biological material shall serve to construe them.
ARTICLE 11.- Without ruling.
ARTICLE 12.- In order to obtain a patent it shall be necessary to submit a written application to the NATIONAL ADMINISTRATION OF PATENTS OF THE NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY, with the characteristics and other data that this Law and its regulations shall indicate.
ARTICLE 12.- In order to obtain a patent, the applicant shall complete the following information and documents, within the terms specified in each case in the Law or in the present Regulation:
a) a patent application in which the following shall be included:
1) a statement by which a patent of invention is formally applied for,
2) full name of the applicant or applicants,
3) number of the identity document and nationality of the applicant or applicants, or the registered data if it were a legal entity,
4) domicile of choice of the applicant or applicants,
5) domicile by choice or ad litem of the applicant,
6) full name of the inventor or inventors if it were corresponding,
7) domicile of choice of the inventor or inventors if it were corresponding
8) title of the invention
9) number of the patent (or of the patent application) of which the present application is additional (if the same were so)
10) number of the patent application of which the filed application is divisional (if it corresponded),
11) number of the application for utility model certificate of which the conversion into patent application is applied for (if it corresponded) or vice versa,
12) when the filing is effected under law 17.011 (PARIS CONVENTION), data of the priority or priorities claimed in the patent application (country, number and filing date of the foreign patent application or applications)
13) when the patent application refers to a microorganism, full name and address of the institutions where the microorganism is being deposited in, date in which it has been deposited and the registration number given to the microorganism by the institution where it has been deposited,
14) full name of the person or the agent of the industrial property authorized in the proceedings of the patent application,
15) number of the identity document of the authorized person or registration number of the authorized agent of the industrial property, or of the general attorney-in-fact authorized to administrate the applicant,
16) signature of the person submitting said application
b) a technical description of the invention,
c) one or more claims,
d) the necessary technical drawings for the comprehension of the invention referred to in the technical specifications or disclosure,
e) an abstract of the description of the invention
f) the reproduction of the drawings in a reduced scale, which shall serve for the publication of the application,
g) a certificate of the deposit of the microorganism issued by the institution where it has been deposited in, when it corresponded,
h) a proof of the payment of the tariffs for the filing of the application,
i) certified copies of the priority or priorities claimed in the application
ARTICLE 13.- The patent may be applied for directly by the inventor or by his successors in title or through their representatives. When a patent is filed in this country after doing so in other countries it shall be considered as priority date, the date in which the first patent application was filed, provided that not more than a period of ONE (1) year had elapsed from the original application.
ARTICLE 13 .- The date of priority referred to in Article 13 of the Law shall be determined in the form foreseen in Law N. 17.011.
ARTICLE 14.- The right of priority mentioned in the foregoing article, shall have to be claimed in the patent application. The applicant shall have to submit, in compliance with the formalities and terms established in the regulations, a statement of priority and a copy of the earlier application certified by the office where the first application was filed, together with its translation in Spanish, when this application is written in another language.
In addition, in order to acknowledge the priority, the following requirements should be complied with:
I) that the application filed in the ARGENTINE REPUBLIC does not have a larger scope than the one claimed in the foreign application; should the scope be broader, the priority shall be only partial and referred to the foreign application;
II) that there exists reciprocity in the country of the first application.
ARTICLE 14.- Without ruling.
ARTICLE 15.- When various inventors have effected the same invention independently one from another, the right to the patent shall pertain to the one having the oldest date of filing or of acknowledged priority, in its case. If the invention had been performed jointly by various persons, then the right to patent shall pertain to all of them in common.
ARTICLE 15 .- When a patent application is filed by two or more persons together, it shall be presumed that the right belongs to them in equal parts, except when the contrary is established.
ARTICLE 16.- The applicant shall be allowed to waive his application at any moment of its procedure. In case the application corresponds to more than one applicant, the waiver shall have to be effected jointly, if this were not so the rights of the party who makes the waiver shall accrue to the rest of the applicants.
ARTICLE 16.- Without ruling.
ARTICLE 17.- The patent application may not contain but one invention or group of inventions related to one another in such manner that they integrate a unique inventive concept in general. The applications not complying with this requirement shall have to be divided in accordance with what is set forth in the regulations.
ARTICLE 17.- When the patent application comprises more than one invention, it shall be divided before its granting. For such effects the PATENT NATIONAL ADMINISTRATION shall demand the applicant to petition such division within a term of THIRTY (30) days as from the notification, with the warning that the application shall be considered abandoned.
ARTICLE 18.- The filing date of the application shall be the one of the moment in which the applicant submits the following to the NATIONAL ADMINISTRATION OF PATENTS created by the present Law:
a) A statement whereby a patent is applied for;
b) The identification of the applicant
c) A description and one or various claims even though they do not comply with the formal requirements established in the present Law.
ARTICLE 18.- Without ruling.
ARTICLE 19.- The following must be supplied for the obtainment of the patent:
a) The denomination and description of the invention;
b) The plans or technical drawings that may be required for the comprehension of the description;
c) One or more claims;
d) An abstract of the description of the invention and the reproductions of the drawings that shall only serve for its publication and as an element of technical information;
e) The proof of the payment of the rights;
f) The documents concerning the assignment of rights and of priority.
If NINETY (90) days elapsed as from the date of filing of the application without the entirety of the documentation being attached to the same, the mentioned application shall be rejected forthwith, unless force majeure is duly justified. If the elements indicated in clause f) are not submitted within the same term, this will cause the loss of the right of international priority.
ARTICLE 19.- As from the filing date of the patent application until NINETY (90) days after that date, the applicant can contribute with complements, corrections and amendments, providing that it does not imply an extension of its object. After that deadline, the suppression of defects put on evidence shall be authorized only by the examiner. The new examples of embodiment that are added shall be complementary for a better understanding of the invention. No right shall be inferred from the complements, corrections and amendments which imply an extension of the original application.
ARTICLE 20.- The invention shall have to be described in the application in a manner sufficiently clear and complete so that an expert person and with ordinary knowledge in the matter can perform it. Likewise, it shall have to include the best known method to perform and put into practice the invention and the elements to be employed in a clear and precise manner.
The described methods and procedures shall have to be directly applicable in production.
In the case of the applications relative to microorganisms, the product to be obtained with a process claimed shall have to be described together with that in the respective application, and a deposit of the strain shall be effected in an institution authorized thereto, according to the rules indicated in the regulation.
The public shall have access to the culture of the microorganism in the institution where it has been deposited, as from the day of the publication of the patent application, in the conditions established in the regulations.
ARTICLE 20.- When the object of a patent application is a microorganism or when in order to perform it a not publicly known nor available microorganism is required, the applicant shall effect the deposit of the strain in an authorized institution to that effect and acknowledged by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY. This obligation shall be acknowledged as complied when the microorganism is deposited on the date of the filing of said application or previous to such date.
The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall acknowledge as able to receive microorganisms to be deposited, to the effects of what has been prescribed in article 21 of the Law, to the institutions acknowledged by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY or those institutions which comply the following conditions:
a) to be permanent,
b) not depending upon the control of the depositants,
c) to dispose of the adequate personnel and premises so as to control the pertinence of the deposit and to guarantee its storage and conservation without risk of contamination.
d) to supply the necessary security measures to reduce to the minimum the risks of losing the deposited material.
As from the filing date of the patent application, the public, at any moment, may obtain samples of the microorganism in the institution where it has been deposited, complying with the ordinary conditions for said procedure.
ARTICLE 21.- The accompanying drawings, plans and diagrams attached shall have to be clear enough so as to achieve the comprehension of the description.
ARTICLE 21.- Without ruling.
ARTICLE 22.- The claims shall define the object for which the protection is applied for, and must be clear and concise. Said claims can be one or more and they shall have to be based on the description without exceeding it.
The first claim shall refer to the main object and the rest must be subordinated to the same.
ARTICLE 22.- The claim or claims shall contain:
a) a preamble or exordium indicating from the start the same title with which the invention has been denominated, subsequently comprehending all the known features of the invention emerged from the nearest state of the art.
b) a characteristic part where the element shall be mentioned establishing the novelty of the invention and that is necessary and indispensable to put it into practice, definitory of what it is desired to protect.
c) if the clarity and comprehension of the invention demanded so, the main claim, which is the only independent one, may be followed by one or more claims, these making reference to the claim they depend on and defining the additional characteristics that it pretends protecting. Similarly, it must be done when the main claim is followed by one or more claims relative to particular manners or embodiments of the invention.
ARTICLE 23.- During its proceedings, an application for patent of invention may be converted into an application for utility model certificate and vice versa. The conversion may only be effected within NINETY (90) days after the filing date, or within NINETY (90) days after the date in which the NATIONAL ADMINISTRATION OF PATENTS requires the mentioned conversion. In case the applicant failed to effect such conversion in the stipulated term, the application in question shall be considered abandoned.
ARTICLE 23.- Without ruling.
ARTICLE 24.- The NATIONAL ADMINISTRATION OF PATENTS shall effect a preliminary examination of the documents and may require to state precisely or to clarify what the mentioned entity considers necessary or to correct omissions. If the applicant does not comply with such requirement within a term of a HUNDRED AND EIGHTY (180) days, such application shall be considered abandoned.
ARTICLE 24.- Once the totality of the documents specified in article 19 of the Law is received, the Patent Commissioner shall order the realization of a formal preliminary examination in a term of TWENTY (20) days.
The application shall be flatly refused if the applicant does not save the pointed out defects in the preliminary examination, within the term of ONE HUNDRED AND EIGHTY (180) days. If the subsisting unobservance were the one referred to the foreign priority, the application may continue the proceedings, but, it shall be considered as if the priority was never invoked. The certificate of the decided applications shall be issued with the explanation the they are granted without impairment of the priority right foreseen in Law 17.011, unless the interested parties require confidentiality of the proceedings until the terms of priority provided in the same have lapsed. The requirement of confidentiality of the proceedings shall be formulated together with the filing of the application.
ARTICLE 25.- The patent application under consideration and its addenda shall be confidential until the moment of its publication.
ARTICLE 25.- Without ruling.
ARTICLE 26.- The NATIONAL ADMINISTRATION OF PATENTS shall proceed to publish the patent application within EIGHTEEN (18) months, as from the date of filing. Upon the applicant’s request, the application shall be published before the stated term is due.
ARTICLE 26.- The publication of the patent application under consideration shall include the following:
a) application number
b) filing date of said application
c) number/s of the priority/ies
d) date/s of the priority/ies
e) country/ies of the priority/ies
f) full name and address of the applicant or applicants
g) full name and address of the inventor or inventors (if it corresponded)
h) registration number of the authorized agent of the industrial property (if it corresponded)
i) title of the invention
j) abstract of the invention
k) the most representative drawing of the invention, if there existed one.
ARTICLE 27.- After the payment of the fee which shall be established by the regulating decree, the NATIONAL ADMINISTRATION OF PATENTS shall proceed to effect an examination of the substance, in order to verify the compliance of the conditions stipulated in TITLE II, CHAPTER I of this Law.
The NATIONAL ADMINISTRATION OF PATENTS may require a copy of the examination as to the substance effected by the examining foreign offices in the terms that shall be established by the regulating decree, and may also require reports from the investigators working in universities or scientific- technological institutes in the country, who shall be compensated in each case, according to what is to be established by the regulating decree.
If the applicant of the patent of invention considers it necessary he may require to the Administration the perform of the examination at his premises.
If after THREE (3) years as from the filing of the patent application, the applicant has not paid the fee corresponding to the examination as to the substance, said application shall be considered waived.
ARTICLE 27.- The main examination shall not be effected if the preliminary examination is not done and approved.
II. Being the formalities of the submission complied, the applicant shall be able to require a main examination. The Patents Commissioner shall assign the application to an examiner so as to realize such examination within the following FIFTEEN (15) days.
The main examination shall be done within ONE HUNDRED AND EIGHTY (180) days as from the payment of the tariff and shall comprehend the following steps:
a) searching of antecedents. The examiner shall try to identify in a way he considers reasonable and feasible the documents he estimates necessary in order to determine if the invention is new and if it implies an inventive activity. His search shall cover all the technical areas that may contain elements concerning the invention consulting the following documentation:
1) documents of national patents ( granted patents and utility models and applications for patents and utility models still under consideration);
2) published patent applications and foreign patents;
3) technical literature, different from that indicated in 1) and 2), which could be pertinent for the investigation.
b)Examination. The examiner shall investigate, up to the point he considers necessary and bearing in mind the result of the preliminary examination and of the search of antecedents, if the applications totally meets with the requirements of the Law and this Regulation.
III) If he considers it necessary, the examiner may require:
a) That the applicant submits, within a term of NINETY (90) running days as from the date of notification of such requirement, a copy of the main examination realized for the same invention by foreign patent offices, if they were available, as it is provided in article 28 of the Law.
b) Specific reports related with the subject of the invention to investigators working in Universities or Institutes of scientific and technological research.
When the collaboration indicated in b) is required, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall acknowledge and shall pay the professional fees corresponding to the category of main investigator of the NATIONAL COUNSEL OF SCIENTIFIC AND TECHNICAL RESEARCH (CONICET) or its equivalent, on the grounds of a budget for the time employed previously approved by the Commissioner of Patents.
IV) If the applicant considers it pertinent, he may require the NATIONAL ADMINISTRATION OF PATENTS to authorize the partial realization of the main examination in his own premises, for the verification of data in the laboratories or equipment involved in the production of the object of the patent. The Commissioner of Patents may accept or reject such requirement, on the grounds that according to his criteria is necessary or convenient.
ARTICLE 28.- If the application meets with objections, the NATIONAL ADMINISTRATION OF PATENTS shall issue notice of the same upon the applicant so that, within the term of SIXTY (60) days, the clarifications the applicant considers pertinent are made, or the information or documents required is submitted. Should the applicant not comply such requirements within the stipulated term, said application shall be considered waived.
All the objections shall be made in one single act by the NATIONAL ADMINISTRATION OF PATENTS , unless clarifications or explanations are previously required to the applicant.
Any person may raise objections based on the patent application and enter documentary evidence within a term of SIXTY (60) days as from the publication contemplated in ARTICLE 26. The objections must consist in the lack or insufficiency of the legal prerequisites for the granting.
ARTICLE 28.- The examiner shall include among his observations, the ones submitted by third parties such being based in the data coming from the publication done according to article 28 of the Law, and also based in the lack of novelty, lack of industrial application, lack of inventive activity or illicitness of the object of the application, unless they were openly contrary to the law and as such they are declared.
Within SIXTY (60) running days as from the date of the notification of the communication, the applicant shall:
a) amend the application for it to comply with the legal and regulatory requirements, or
b) express his opinion about the observations, refute them or formulate the clarifications he considers pertinent or convenient.
c) if the applicant would not answer the communication in the mentioned term, the application shall be abandoned.
ARTICLE 29.- Should the objections raised by the NATIONAL ADMINISTRATION OF PATENTS not met by the applicant, the patent application shall be rejected, and such decision shall be served upon the applicant in writing stating the causes and grounds of the decision.
ARTICLE 29.- When the formulated observations were not satisfactorily amended by the applicant, the examiner, having previously done a report specifying the reasons why, shall issue another office action to the applicant, may advise to the PATENT NATIONAL ADMINISTRATION to refuse the applications, in the terms of article 29 of the Law.
ARTICLE 30.- Should all the corresponding requirements be approved, the NATIONAL ADMINISTRATION OF PATENTS shall proceed to issue the letters patent.
ARTICLE 30.- If as a result of the main examination the examiner determined that the invention meets all the legal and regulatory requirements enabling its patenting and, in its case that the formulated observations have been satisfactorily amended, he shall issue in the term of TEN (10) days a report to the Commissioner of Patents with his recommendation, of which the latter shall decide within the following THIRTY (30) days.
Once the decision is pronounced granting or refusing the issuing of the title the same shall be notified to the applicant through a proving means.
If the decision is of refusal, as from the date of notification a term of THIRTY (30) days shall be in force in order to interpose the corresponding actions or appeals, according to article 72 of the Law.
The patents granted by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall be registered in the Register of Granted Patents in a correlative order, entering its number, title, full name of the owner, date and number of the application, date of granting and date of expiration. This registration may be done in a magnetic support, adopting all the necessary measures to secure its conservation and inalterability.
ARTICLE 31.- The granting of the patent shall be done with no prejudice to a third party with a better right than that of the applicant, and with no guarantee from the State concerning the usefulness of its object.
ARTICLE 31.- Without ruling.
ARTICLE 32.- The announcement of the granting of the patent shall be published in the Bulletin that shall be issued by the NATIONAL ADMINISTRATION OF PATENTS . The announcement shall include the following:
a) The number of the granted patent;
b) The class or classes in which the patent has been included;
c) The name and surname, or the corporate name, and the nationality of the applicant and, in its case, of the inventor, as well as the address;
d) The abstract of the invention and of the claims;
e) The reference of the bulletin in which the patent application had been made public and, in its case, the amendments introduced in its claims;
f) The date of the filing of the application and of its granting; and
g) The term for which it has been granted.
ARTICLE 32.- The announcement of the granting of the patent shall be also published in the book that the INSTITUTE shall publish.
ARTICLE 33.- The only changes that may be introduced in the text of the title of a patent are the ones aimed to correct material or formal errors.
ARTICLE 33.-Without ruling.
ARTICLE 34.- The patents of invention granted shall be open for public knowledge and a copy of the documents shall be extended to whoever asked for it, after having paid the fees that shall be established.
ARTICLE 34.- Without ruling.
CHAPTER IV
TERM AND EFFECTS OF THE PATENT
ARTICLE 35.- The patent has an unextendable duration of TWENTY (20) years, as from the date of the filing of the application.
ARTICLE 35.- Without ruling.
ARTICLE 36.- The right conferred by a patent shall not produce any effect against:
a) A third party that, in a private or academic field and without commercial purposes, effects activities concerning scientific or technological research in a manner purely experimental, of essay or teaching, and to achieve said goal manufactures a product or uses a process equal to the patented one;
b) The preparation of medicines realized in the usual way by enabled professionals and by unit in performance of a prescription, nor the acts relative to the medicines thus prepared;
c) Any person who purchases, uses, imports or in any form markets the patented product or obtained by the patented process, once said product has been legally put in the market in any country. It shall be understood that the marketing is legal when it complies with the Agreement of Intellectual Property Rights Related to Commerce. Part III Section IV TRIP’S-GATT Agreement.
d) The use of inventions patented in our country on board of foreign, land, air or maritime vehicles that accidentally or temporarily might circulate in the jurisdiction of the ARGENTINE REPUBLIC, if they are exclusively used for the necessities of said vehicles.
ARTICLE 36.- According to what has been foreseen in article 37 clause c) of the Law the owner of the patent granted in the ARGENTINE REPUBLIC shall have the right to prevent third parties from performing manufacturing acts, use, offer for sale, sale or import in its territory without the owner’s consent of the product object of the patent, unless that such product has been lawfully put in the market of any country. It shall be understood that an imported product has been lawfully put in the Territory of the ARGENTINE REPUBLIC when the licensee authorized for it marketing in the country accredits that this has been so by the owner of the patent in the country where such authorization has been acquired, or from third parties authorized for its marketing in the ARGENTINE REPUBLIC .
The marketing of the imported products shall be ruled under what is provided in the article 98 of the Law and this ruling.
CHAPTER IV
ASSIGNMENTS AND CONTRACTUAL LICENSES
ARTICLE 37.- The patent and the utility model shall be transferable and may be the object of licenses, totally or partially in the terms and with the formalities established in the law. For the assignment to become enforceable with respect to third parties it must be registered before the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY.
ARTICLE 37.- When an application for patent of invention is transferred, an application shall be submitted in which the names and addresses of the assignor and the assignee shall be indicated, the latter, obligatorily constituting domicile by choice in the FEDERAL CAPITAL (CAPITAL FEDERAL) and the accrediting of the signatures of both parties.
The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall make available TWO (2) registers, one for patents of invention and another for certificates for utility models, where the cessions foreseen in article 37 of the Law shall be recorded.
The transfer of rights shall be enforced, against third parties as from the date of its filing when this is done within TEN (10) working days as from the date of said transfer. After that term they shall only have an effect against third parties as from the registration date.
The owner of a patent may, as from its granting date, apply in written form before the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY the same to be included in the Register of Patents Open to a Voluntary Licensing, which, to that effect, the INSTITUTE shall establish.
Said Register may be consulted by anyone interested, who shall negotiate, if he wished so, with the owner of the patent the conditions of the use of the license.
The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall dispose the publication in the Patents of Invention and Utility Model Certificates Gazette and the disclosure through the means such entity considers convenient, of the patents registered in the indicated register, mentioning the number, title and date of granting and date of filing in such register.
ARTICLE 38.- The license agreements shall not contain restrictive commercial clauses affecting the production, the marketing or the technological development of the licensee, nor restrict the competition, nor incur in any other behavior such as exclusive grant-back conditions, those preventing the challenge of the validity, those imposing compulsory joint licenses or any of other behavior contemplated in Law Nº 22.262 or any other amending or substituting the same.
ARTICLE 38.- Without ruling.
ARTICLE 39.- Unless stipulated to the contrary, the granting of a license shall not exclude the possibility, on the part of the owner of the patent or the utility model, to grant other licenses nor of performing the simultaneous exploitation (working) by himself.
ARTICLE 39.- Without ruling.
ARTICLE 40.- The beneficiary of a contractual license shall have the right to exercise the legal actions corresponding to the owner of the inventions, only in the case said owner does not exercise them himself.
ARTICLE 40.- Without ruling.
CHAPTER VI
EXCEPTIONS TO THE CONFERRED RIGHTS
ARTICLE 41.- The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY upon founded requirement of the competent agency, shall be able to establish limited exceptions to the rights conferred by a patent. The exceptions shall not attempt in an unjustified manner against the normal exploitation (working) of a patent nor cause unjustified prejudice to the legitimate interests of the owner of the patent, bearing in mind the legitimate interests of third parties.
ARTICLE 41.- The MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS together with the MINISTRY OF HEALTH AND SOCIAL ACTION or the MINISTRY OF DEFENSE, as long as it is their competence, shall be the competent authorities to require the establishing of exceptions limited to the rights conferred by a patent, in the terms and with the limits foreseen in article 41 of the Law.
CHAPTER VII
OTHER USES WITHOUT AUTHORIZATION
BY THE OWNER OF THE PATENT
ARTICLE 42.- Should a potential user had attempted the obtainment of a license from the owner of a patent in reasonable commercial terms and conditions, in terms of Article 43, and such attempts were unsuccessful after a term of a HUNDRED AND FIFTY (150) running days as from the date in which the respective license had been applied for, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY, may allow other uses of that patent without the authorization of the owner of said patent. With no prejudice of the above mentioned, it shall be communicated to the authorities created through Law Nº 22.262 or the one substituting or amending said Law, that free competition, to which may correspond.
ARTICLE 42.- Having lapsed the terms established in article 43 of the Law, if the invention has not been exploited, unless due to force majeure, or if no serious or effective preparations have been done to exploit the invention object of the patent, or when the exploitation of the same has been interrupted for more than one year, anyone interested may request from the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY the granting of an obligatory license for the manufacture and selling of the patented product or the use of the patented process. To such effects, the intents to obtain the granting of a voluntary license from the owner of the patent must be accredited, such license in reasonable commercial terms and conditions and that such intents had no effects after a term of ONE HUNDRED AND FIFTY (150) days have lapsed, and that the technical and commercial conditions to supply the internal market in reasonable marketing conditions are met.
The petitioning of a license shall be done before the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY and must contain the reasons due to which it is required and at that instance all the evidence considered pertinent shall be supplied. The respective statement shall be communicated to the owner of the patent to the address in the file of the same, for a term of TEN (10) working days for the owner to answer and offer evidence. The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY may reject the evidence that is not considered pertinent, and the other must be produced within a term of FORTY(40) days. At the end of this term or having been produced all the evidence, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall decide to grant or reject the required obligatory license.
The decision of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY granting or rejecting the obligatory license may be appealed by the parties before the CIVIL AND COMMERCIAL FEDERAL COURTS in CAPITAL FEDERAL within a term of TEN (10) days as from the notification, without impairment of the appeals provided in article 72 of the Law and in the National Law of Administrative Procedures and its ruling. The substantiation of the judicial appeal shall not have suspensive effects.
ARTICLE 43.- When THREE (3) years have elapsed as from the granting of the patent or FOUR (4) as from the filing of the application, if the invention has not been worked, unless this was caused by force majeure, or serious and effective preparations have not been effected for the exploitation of the invention which is the object of the patent or when the exploitation of said patent has been discontinued for the term of ONE (1) year, any person shall be allowed to apply for an authorization to use the invention without the authorization from its owner.
It shall be considered as force majeure, in addition to such legally recognized causes, the objective difficulties of technical and legal kind, such as the delay in the obtainment of the registration in Government Agencies for the authorization to commercialize, alien to the will of the owner of the patent, which make impossible the exploitation of the invention. The lack of economical resources or the absence of economical feasibility of the exploitation shall not constitute by themselves justifying circumstances.
The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall notify the owner of the patent the default incurred concerning the provision of the first paragraph before granting the use of the patent without authorization from said owner.
The authority of application, after hearing the parties, and if they do not reach an agreement, shall establish a reasonable compensation that the owner of the patent shall receive, which shall be set forth in accordance to the circumstances pertaining to each case and taking into account the economical worth of the authorization, bearing in mind the average royalty fees for the business line involved license agreements between independent parties. The decisions concerning to the granting of these uses must be laid down within NINETY (90) working days as from the filing of the application and they shall be appealable before the Civil and Commercial Federal Courts. The proceedings of the appeal shall not have suspensive effects.
ARTICLE 43.- The exploitation shall be considered as such when the distribution and marketing in the sufficient manner in order to satisfy the demand of the national market occurs.
The decisions adopted by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY within the frame of this article may be appealed in the terms of article 42, last paragraph of this Ruling.
ARTICLE 44.- The right of exploitation (working) conferred by a patent shall be granted without the authorization of its owner, when the legally qualified authority had determined that the owner of the patent had incurred in anticompetitive practices. In these cases, without prejudice of the appeals available to the owner of the patent, the granting shall be effected without necessity of following the procedure established in Article 42.
To the ends of this Law, the following, among others, shall be considered as anticompetitive practices:
a) The fixing of comparatively excessive prices, with respect to the market average or being discriminatory of the patented products; particularly when there are offers of market supply at prices significantly lower to the ones offered by the owner of the patent for the same product;
b) The refusal to supply the local market in reasonable commercial conditions;
c) The obstruction of commercial or productive activities;
d) Any other act framed within the behavior considered punishable by Law Nº 22.262 or anyone replacing or substituting the same.
ARTICLE 44.- The competent authority of Law 22.262, or the one replacing or substituting it, by the court or on request of one of the parties, shall proceed to determine the existence of a supposition of anticompetitive practice, when it is exerted irregularly in such way that it constitutes an abuse of the dominant position in the market, in the terms provided by article 44 of the Law and the other provisions in force of the law for the defense of Competition, previous to the citation of the owner of the patent, so he exposes the reasons that make to his right, for a term of TWENTY (20) days. After the statement, and , in its case, the evidence offered, said authority shall judge about the pertinence of the granting of obligatory licenses, and shall issue an opinion respecting the conditions in which they should be offered.
In this last case, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY, once the proceedings referred to in the above mentioned paragraph are received, it shall publish an advertisement in the OFFICIAL GAZETTE, in the PATENTS GAZETTE and in a newspaper of national circulation informing that it shall study offers from third parties interested in the obtainment of an obligatory license giving a term of THIRTY DAYS (30) days for its submission. Once the application or applications are formulated the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall decide the granting or refusing of the obligatory license, on the basis of the above mentioned. This decision shall be susceptible to the provision foreseen in the last paragraph of article 42.
The judgments issued by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY about the pertinence of the granting or related with the granting, or, in its case, the refusal of the obligatory license shall be adopted in a term that shall not exceed THIRTY (30) days.
ARTICLE 45.- The NATIONAL EXECUTIVE POWER may, by reason of sanitary emergency or of national security, decide of the exploitation of certain patents by means of the granting of the right of exploitation conferred by a patent; its scope and term of duration shall be limited to the ends of the granting.
ARTICLE 45.- The NATIONAL EXECUTIVE shall grant the obligatory licenses in accordance to what has been foreseen in article 46 of the Law, with the intervention of the MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY , and which corresponds, according to the case to the MINISTRY OF HEALTH AND SOCIAL ACTION and to the MINISTRY OF DEFENSE, within the frame of competence assigned by the Law of Ministries.
ARTICLE 46.- The use without authorization from the owner of a patent so as to allow the exploitation of a patent -second patent- that cannot be exploited without infringing another patent -first patent- shall be granted provided that the following conditions are complied with:
a) That the invention claimed in the second patent means a significant technical progress, of a considerable economic importance, with respecting to the invention claimed in the first patent;
b) That the owner of the first patent has the right to obtain a cross-license in reasonable conditions to exploit the invention claimed in the second patent; and
c) That the authorized use of the first patent cannot be assigned without the assignment of the second patent.
ARTICLE 46.- The decisions of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY judged when exerting the attribution conferred by article 46 of the law, shall be susceptible of the appeals provided in the last paragraph of article 42 of this ruling.
ARTICLE 47.- When other uses without authorization of the owner of the patent are allowed, the following provisions shall be observed:
a) The authorization of said uses shall be made by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY;
b) The authorization of said uses shall be considered in relation to the circumstances of each case;
c) For the uses contemplated in the article 43 and/or 46 previous to its granting the potential user must have attempted the obtainment of an authorization from the owner of the rights in commercial terms and conditions according to article 43 and those attempts had not a positive result in the term set forth by article 42. In the case of not commercial public use, when the government or the contractor, without effecting a patent search, knows or has sustainable reasons to know that a valid patent is or shall be used by or for the Government, this shall be informed forthwith to the owner;
d) The authorization shall extend to the patents related with the components and processes for the manufacture which allow its exploitation;
e) Those uses shall not be of an exclusive character;
f) They shall not be transferable, unless it is done with that part of the company or its intangible assets integrating it;
g) They shall be authorized to supply mainly the internal market, except in the cases disposed in the articles 44 and 45;
h) The owner of the rights shall receive a reasonable compensatory according to the circumstances in each case, considering the economic worth of the authorization, following the proceeding of article 43; when the amount of the compensation is determined in the cases in which the uses were authorized to remedy anticompetitive practices it shall be borne in mind the necessity of correcting said practices and the withdrawal of the authorization may be denied if it is considered probable that the circumstances that had prompted the license should occur again;
i) For the uses established in article 45 and for any other use not contemplated, its scope and term shall be restricted to the purposes which caused the authorization and may be withdrawn if the circumstances that gave place to that authorization have ceased to exist, it being not probable that they arise again, being the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY legally qualified to examine, upon previous founded petition, if such circumstances still exist. When these uses are left without effect, the legitimate interests of the persons that had received said authorization taken into account. Whenever semi-conductor technology is concerned, it shall only be allowed for the public use and not a commercial one, or to be used to correct practices declared contrary to competition after a judicial or administrative procedure.
ARTICLE 47.- The granting of obligatory licenses shall be considered in order to the circumstances in each case and provided that it has been incurred in some of the causes provided by the Law so as to proceed. The patents related to the components and manufacturing processes that allow its exploitation shall be extended, when any of the causes provided by the Law for the same are submitted and shall be granted under the conditions foreseen in article 47 of the Law.
ARTICLE 48.- In all cases the decisions relative to the uses not authorized by the owner of the patent shall be exposed to a judicial review, as well as what has regard to the pertinent compensation when this is justified.
ARTICLE 48.- Without ruling.
ARTICLE 49.- The appeals raised against to administrative decisions in relation with the granting of the uses foreseen in the present chapter, shall not have suspensive effects.
ARTICLE 49.- Without ruling.-
ARTICLE 50.- Whoever applies for any of the uses contemplated in this Chapter must have the economic capacity to effect an efficient exploitation of the patented invention and to have available premises approved to that effect by the competent authority.
ARTICLE 50.- The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall establish the proceeding and form for the accrediting of technical and economical capacity, according to the norms in force issued by the competent authorities, to realize an efficient exploitation of the patented invention, understood in terms of supply to the national market in reasonable marketing conditions.
CHAPTER VIII
PATENTS OF ADDITION OR OF IMPROVEMENT
ARTICLE 51.- Every person who improved a discovery or patented invention shall have the right to apply for an additional patent.
ARTICLE 51.- The application for an obligatory license of an additional patent shall be granted by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY , with a founded judgment, with the previous accrediting of the technical or economical importance of the improvement of the discovery or the invention. The decisions issued within the frame of this article shall be susceptible of the appeals foreseen in the last paragraph of article 42 of this ruling.
ARTICLE 52.- The additional patents shall be granted for the remainder of the lifespan of the patent of invention upon which it depends. In case there were more than one, the latest expiration date shall be taken into account.
ARTICLE 52.- Without ruling.
TITLE III
UTILITY MODELS
ARTICLE 53.- All new disposition or shape obtained or introduced in tools, working instruments, utensils, devices or known objects suitable for a practical work, as regards a better utilization in the function to which they are destined, they shall confer to their creator the exclusive right to exploit it, that shall be justified by deeds denominated utility model certificates.
This right shall be granted only to the new shape or disposition as it is defined, but an utility model certificate shall not be granted within the scope of protection of a patent of invention in force.
ARTICLE 53.- Without ruling.
ARTICLE 54.- The utility model certificates shall be valid for a term of TEN (10) inextensible years, as from the date of filing of the application, and shall be subject to the payment of the fees established by the ruling decree.
ARTICLE 54.- Without ruling.
ARTICLE 55.- So as to proceed with the issuing of the certificates of the inventions contemplated in this title it shall be essential that they are new and containing an industrial character; but it shall not constitute an impediment the fact that they lack of inventive activity or that they are known or that they have already been disclosed abroad.
ARTICLE 55.- It shall be considered that the novelty of an invention has not been broken when it is the applicant who makes known or discloses abroad the invention object of the utility model, within SIX (6) months before the filing of the respective application in ARGENTINEREPUBLIC.
ARTICLE 56.- Together with the application for an utility model certificate the following shall be enclosed:
a) The title appointing the invention is designated;
b) A description referred to a single main object of the new configuration or disposition of the object for practical use, of the functional improvement, and of the relation between the new configuration or disposition and the functional improvement, in such way that the invention can be reproduced by a person skilled in the art, and an explanation of the drawing or drawings;
c) The claim or claims referred to the invention.
d) The necessary drawing or drawings.
ARTICLE 56.- Without ruling.
ARTICLE 57.- Once an application for an utility model certificate is filed, it shall be examined if the prescriptions in articles 53 and 55 have been complied with.
Having been effected said exam and verified what has been established in the above mentioned paragraph, or done the corrections when this is possible, the certificate shall be issued.
ARTICLE 57.- Without ruling.
ARTICLE 58.- The norms about patents which are not incompatible with the utility model are applicable to the same.
ARTICLE 58.- The norms related to the patents of invention shall be applied to the proceedings of the certificates of utility models in what is pertinent.
TITLE IV
NULLITY AND LAPSING OF PATENTS AND UTILITY MODELS
ARTICLE 59.- The patents of invention and utility model certificates shall be totally or partially null when they have been granted in contravention of the dispositions of this Law.
ARTICLE 59.- Without ruling.
ARTICLE 60.- If the nullity causes should affect only a part of the patent or of the utility model, a partial nullity shall be declared by means of the annulment of the claim or claims affected by such causes. It shall not be allowed to declare the partial nullity of a claim.
When the nullity is partial, the patent or the utility model shall continue in force with reference to the claims that have not been declared null, provided that it is able to constitute the object of an utility model or of an independent patent.
ARTICLE 60.- Without ruling.
ARTICLE 61.- The declaration of nullity of a patent shall not determine by itself the annulment of the additions to the same, provided that the conversion of these into independent patents is applied for within NINETY (90) days after the notification of said declaration of nullity.
ARTICLE 61.- Without ruling.
ARTICLE 62.- The patents and utility model certificates shall lapse in the following cases:
a) When the time for which they have been granted expires;
b) By resignation of the owner. In the case that the ownership of the patent pertains to more that one person, the resignation shall be made jointly. The resignation shall not affect the rights of third parties;
c) By not effecting, the payment of the maintenance annual fees to which the are submitted; being the respective deadlines fixed, the owner shall have a grace period of a HUNDRED AND EIGHTY (180) days to pay the updated fee, at the expiration of such period the lapsing shall come into effect, except in the case when the payment has not been done due to force majeure;
d) When the invention, assigned to third parties, is not worked for a term or TWO (2) years due to causes attributed to the owner of the patent.
The administrative decision declaring the lapsing of a patent shall be judicially appealable. The appellation shall not have a suspensive effect.
ARTICLE 62.- The final decisions adopted in virtue of the provisions of Title IV of the Law shall be susceptible of the appeals foreseen in the last paragraph of article 42 of this Ruling.
ARTICLE 63.- No judicial statement shall be necessary for the nullity or the lapsing to be effective in order to introduce the invention to public domain, the nullity as well as the lapsing operate automatically.
ARTICLE 63.- Without ruling.
ARTICLE 64.- The nullity and lapsing may be filed by anyone having a legitimate interest.
ARTICLE 64.- Without ruling.
ARTICLE 65.- The nullity and lapsing actions may be opposed by way of defense or exception proceedings.
ARTICLE 65.- Without ruling.
ARTICLE 66.-Being the nullity or lapsing of a patent or of an utility model stated at Court, and being the decision passed having the effect of a final judgment (res judicata), the corresponding notification shall be sent to the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY.
ARTICLE 66.- Without ruling.
TITLE V
ADMINISTRATIVE PROCEEDINGS
CHAPTER I
PROCEEDINGS
ARTICLE 67.- The applications shall be signed by the interested party or by a legal representative and shall have attached the official receipt of payment of the corresponding fees. If any of these elements were missing the NATIONAL ADMINISTRATION OF PATENTS shall reject the application.
ARTICLE 67.- Without ruling.
ARTICLE 68.- When the applications are filed by way of a legal representative, he shall supply evidence of his legal status by means of the following:
a) A power of attorney or a certified copy thereof entitling him to that effect;
b) A power of attorney in accordance with the legislation applicable in the place where it is granted or in accordance with the international treaties, in the case in which the legal representative is a foreign judicial person;
c) The evidence of the legal status of the representative shall be accredited in each file by means of supplying a simple copy of the proof of the registration, in the case the power of attorney is registered in the powers of attorney general register located in the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY.
ARTICLE 68.- Without ruling.
ARTICLE 69.- In every application, applicant shall constitute domicile by choice within the national territory and shall communicate the NATIONAL ADMINISTRATION OF PATENTS of any change concerning the same. In case the change of domicile is not notified, the notifications in the domicile registered in the file shall be considered valid.
ARTICLE 69.- Without ruling.
ARTICLE 70.- Until the publication referred in article 26, the files under study may be inspected only by the applicant, the legal representative of the same, or the persons duly authorized by said applicant.
The employees of the NATIONAL ADMINISTRATION OF PATENTS involved in the proceedings of the applications, shall be bound to keep confidentiality respecting the contents of the files.
It is an exception to the above mentioned all the information of official nature or the information required by court authorities.
ARTICLE 70.- The administrative technical information contained in the files of the patent application is secret, and the agents of the NATIONAL PATENTS ADMINISTRATION, NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY, shall not allow the same to be disclosed nor used in any way by third parties not interested nor known in general. Moreover, they shall be guarded so they are not available to those ambits in which they are normally used.
Anyone breaking this secret shall deserve the legal actions that may correspond, plus a penalty of exoneration and a fine according to their being depending directly from the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY, the Administration or Organism that due to technical reasons must necessarily intervene, without prejudice of what has been established in articles 157, 172 and 173 of the Penal Code. The administrative investigation or legal prosecution may substantiate on own initiative or by order from the parties.
ARTICLE 71.- The employees of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY may not apply for, directly or indirectly, rights in representation of third parties up to a period of TWO (2) years after the date in which the working relationship with the mentioned entity ceases, under penalty of dismissal and a fine.
ARTICLE 71.- Without ruling.
CHAPTER II
RECONSIDERATION APPEALS
ARTICLE 72.- The reconsideration appeal shall proceed:
a) Against a decision refusing the granting of a patent or utility model;
b) Against a decision giving rise to the foreseen observations, in terms of the article 28 of the present Law.
In both cases it shall be lodged in written form to the President of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY in a summary term of THIRTY (30) days as from the date of notice of the respective decision. The appeal shall have enclosed the documentation justifying it.
ARTICLE 72.- The interposing of the reconsideration appeals, established in article 72 of the Law shall not be an enabling bail of the other administrative or judicial appeals, which could result pertinent through the application of norm of the Law or of the Law N.19.549 and of the Ruling of Administrative Proceedings Decree 1759/72 (O.T. 1991).
ARTICLE 73.- After the examination of the arguments in the appeal together with the documents enclosed, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall issue the corresponding resolution.
ARTICLE 73.- Without ruling.
ARTICLE 74.- When the resolution issued by the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY rejects the appeal, the appellant shall be notified said decision in written form. When the resolution is favorable, the procedure shall be carried out in accordance to article 32 of the present Law.
ARTICLE 74.- Without ruling.
TITLE VI
VIOLATION OF THE RIGHTS CONFERRED BY
THE PATENT OR UTILITY MODEL
ARTICLE 75.-The infringement of the inventor’s rights shall be considered as counterfeit and punished with imprisonment for SIX (6) months to THREE (3) years and a fine.
ARTICLE 75.- Without ruling.
ARTICLE 76.-The same penalty as in the proceeding article shall be incurred by anyone who knowingly:
a) produces or entrusts the production of one or more objects infringing the rights of the owner of the patent or the utility model.
b) anyone importing, selling or commercializing or exhibiting or introducing in the territory of the ARGENTINE REPUBLIC, one or more objects infringement the rights of the owner of the patent or the utility model.
ARTICLE 76.- Without ruling.
ARTICLE 77.- The same penalty shall be incurred, increased in one third, by anyone that:
a) being partner, mandatory, adviser, employee or worker of the inventor or his legal successors appropriates or discloses the invention still not protected;
b) anyone corrupting the partner, mandatory, advisor, employee or worker of the inventor or his legal successors obtained the disclosure of the invention;
c) anyone violating the bound to secrecy imposed in this Law.
ARTICLE 77.- Without ruling.
ARTICLE 78.- A fine shall be imposed to anyone not being the owner of a patent or utility model or not being the beneficiary of such rights anymore, uses in its products or in its advertising designations capable of inducing the public into error respecting their existence.
ARTICLE 78.- Without ruling.
ARTICLE 79.- In case of repetition of the offenses punished by this Law the penalty shall be doubled.
ARTICLE 79.- Without ruling.
ARTICLE 80.- Criminal participation and complicity shall be applied in accordance with the Penal Code.
ARTICLE 80.- Without ruling.
ARTICLE 81.- In addition to the penal actions, the owner of the patent of invention and his licensee or of the utility model, may start civil actions for the forbidding of the continuation of the illegal exploitation and to obtain a compensation for the suffered prejudice.
ARTICLE 81.- Without ruling.
ARTICLE 82.- The lapsing of the actions established under this title shall operate in accordance with the Codes.
ARTICLE 82.- Without ruling.
ARTICLE 83.-
I. Previous to the lodging of the letter patent or of the utility model certificate, the damaged may request under the guarantees the judge considers necessary, the following provisional remedies:
a) The seizure of one or more samples of the objects under infringement, or the description of the incriminated process;
b) The inventory or the embargo of the forged objects and of the machines specially destined to the manufacturing of the products or to the performance of the incriminated process.
II. The judges may order preliminary measures in connection with a granted patent, in conformity with articles 30, 31 and 32, in order to
- prevent the infringement of the patent and, in particular, to avoid the entry of goods, included imported ones, into the commercial channels, immediately after Customs clearance;
preserve relevant evidences with regard to the alleged infringement, provided that the following conditions are verified:
- There is a likelihood that the patent, if challenged by the defendant as being invalid, shall be declared valid;
- It is summarily proven that any delay in granting such measures shall cause a considerable harm to the patentee;
- The harm that may be caused to the patentee exceeds the one that the alleged infringer shall suffer in case the measures were wrongly granted;
- There is a reasonable likelihood that the patent is infringed.-
Once met the cited conditions, in exceptional cases, when there is a demonstrable risk of evidence being destroyed, the Judges may grant such measures “inaudita altera parte”.
In all the cases, prior to granting the measure, the Judge shall officially design an expert who must pronounce about points a) and d) within a term of fifteen (15) days.
In case the of granting any of the measures foreseen in this article, the Judges will request the plaintiff a bond or equivalent guaranty sufficient to protect the defendant and avoid excesses.
ARTICLE 83.- The provisional remedies and the bails demanded for its proceeding, foreseen in article 83 of the Law, shall not exclude the adoption of other provisional remedies, under the terms established in the substantive legislation or of procedure applicable in each case.
ARTICLE 84.- The remedies referred to in the above mentioned article shall be carried out by the Officer of the Court, assisted by one or more experts, upon request of the plaintiff.
The document shall be signed by the plaintiff or a person duly authorized by him, by the expert or experts, by the owner of the premise or the persons in charge at that moment and by the Officer of the Court.
ARTICLE 84.- Without ruling.
ARTICLE 85.- Anyone having in his possession objects under infringement shall provide complete information concerning the name of the person that had sold or supplied said objects, the amount and value of those objects as well as the time the products began to be sold, under the penalty of being considered an accomplice of the infringer.
The Officer of the Court shall enter into the file the explanations that the person involved supplies voluntarily or at the request of said Officer.
ARTICLE 85.- Without ruling.
ARTICLE 86.- The remedies listed in Article 83, shall remain without effect after a period of FIFTEEN (15) days without the applicant starting the corresponding legal action, without this affecting the evidential value of the verification record.
ARTICLE 86.- Without ruling.
ARTICLE 87.- In the case that the preliminary measures have not been granted in conformity with the article 83 of the present Law, the plaintiff may demand a bailbond from the defendant in order to prevent the same from interrupting the exploitation of the invention, in case the latter wishes to continue with said exploitation.
ARTICLE 87.- Without ruling.
ARTICLE 88.- To the effects of civil proceedings, when the object of a patent is a process to obtain a product, the Judges shall order the defendant to prove that the process he is using to obtain the product differs from the one patented.
Nevertheless, the Judges shall be empowered to order the plaintiff to prove that the process used by the defendant infringes its patented process if the product obtained from the patented process is not new.
Provided that there is no evidence showing the contrary, it must be presumed that the product obtained by the patented process is not new if the defendant or an expert designed by the Judge (upon request of the defendant) may show the existence in the marketplace of a product identical to the product obtained as a result of the process patent, without infringement, and having been originated in a source different than the patent holder or the defendant.
When providing the evidence under this article, it must be taken into account the legitimate interests of the defendants as to as the protection of their trade and industrial secrets.
ARTICLE 88.- Without ruling.
ARTICLE 89.- Federal judges having jurisdiction in Civil and Commercial Matters shall be competent concerning civil suits, which shall follow ordinary legal proceedings, and the Federal Judges having jurisdiction in Criminal and Correctional Matters shall be competent concerning penal actions which shall follow correctional legal procedures.
ARTICLE 89.- Without ruling.
TITLE VII
ORGANIZATION OF THE NATIONAL
INSTITUTE OF INDUSTRIAL PROPERTY
ARTICLE 90.- Hereby the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY is created, as an autarchic organism, with legal entity status and having its own assets , which shall operate in the ambit of the MINISTRY OF ECONOMY AND PUBLIC WORKS. It shall be the authority of application of the present Law, of Law 22.362, Law 22.426 and Decree-Law 6673 of August 9, 1963.
The patrimony of the Institute shall consist of the following:
a) The tariffs and annuities resulting from the law it applies to and the rates that it receives as a retribution for the additional services it gives;
b) Contributions, subsidies, legacies and donations;
c) The assets pertaining to the Temporary Center for the Creation of the NATIONAL INSTITUTE OF THE INDUSTRIAL.
d) The amount that the NATIONAL CONGRESS fixes in the ANNUAL NATIONAL BUDGET.
ARTICLE 90.- The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY, shall have under its charge the performance of the activity that competes the State concerning Industrial Property.
ARTICLE 91.- The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall be directed and administered by a board consisting of THREE (3) members, appointed by the NATIONAL EXECUTIVE, one of them proposed by the MINISTRY OF ECONOMY AND PUBLIC WORKS, and another proposed by the MINISTRY OF HEALTH AND SOCIAL ACTION.
The THREE (3) members shall appoint the directors that shall exercise the presidency and vice-presidency, respectively, among said THREE (3) members. The remaining member shall act as vocal. The members of the board shall have exclusive full-time dedication in their functions, these comprising the incompatibilities established by the law for the public officials and shall only be removed from their post by the NATIONAL EXECUTIVE through an act including the motives for such removal.
The mentioned directors shall last FOUR (4) years in their posts being these able to be renovated indefinitely.
A Syndicate shall function in the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY which shall have as an aim the supervision and controlling of the organisms that constitute the Institute.
The Syndicate shall be held in office by a permanent syndic and a temporary syndic named by the NATIONAL EXECUTIVE under the proposal of the NATIONAL GENERAL AUDITORSHIP.
ARTICLE 91.- The structure of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall be constituted by the following organisms:
1.- Board of Directors
2.- Unit of Internal Audit (Trusteeship)
3.- Honorary Consultative Council
4.- National Patents Administration
5.- Directorships
The Board of Directors is the supreme governing organism, to which corresponds the functions of direction and control of the management of the same.
The Board of Directors shall be constituted by ONE (1) president, ONE (1) vice-president and ONE (1) vocal.
The President of the Board of Directors shall exercise the representation of the INSTITUTE, being replaced by the vice-president in the case the former is absent.
The Syndicate shall have the functions foreseen in Title VI of Law N. 24.156 and its ruling provisions.
ARTICLE 92.- The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall exercise the following functions:
a) To ensure the compliance of the norms set forth in the present Law and of the Law 22.362 and 22.426 and of the Decree-Law 6673/63;
The NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY, after hearing the parties, having had no agreement among them, shall fix a compensation which the owner of the patent shall perceive, which shall be established according to the circumstances in each case and bearing in mind the economical value of the authorization, and the royalty rates mean for the section treated in license commercial contracts between independent parties.
b) To hire necessary technical and administrative personnel so as to carry out its functions;
c) To execute agreements with private and public organisms for the effecting of tasks within its ambit;
d)To administrate the funds it may collect by means of the tariffs for its services;
e) To prepare an annual Report and Balance;
f) To establish a remuneration scale for the personnel carrying out tasks in the Institute;
g) To publish in the Bulletins of Trade Marks and Patents and in the Books of Trade Marks, of Patents and Industrial Designs;
f) To elaborate a Data Bank;
i) To promote its activities;
j) To make its actions public.
ARTICLE 92.- The following shall be considered attributions of the Institute, as well as the ones foreseen by the Law:
a) The administrative actions concerning the recognition and maintenance of the protection registered to the diverse manifestations of the industrial property, comprising the proceedings, decision of files and the preservation and publicity of the documents.
b) To divulge periodically the technological information, object of the registration without injury to other type of publication considered pertinent. For this aim it shall count with its own data bank, connected to international banks in the subject and foreign offices of the industrial property.
c) To apply the National Constitution, the international agreements, and laws and norms in force concerning the subject, as well as to propose the adhesion of our country to those that have not yet subscribed, and in general to favor the development of the international relationship in the field of the industrial property.
d) To promote the initiatives and develop activities leading to a better knowledge and protection of the industrial property national and internationally.
e) To maintain direct relationships with national and international organisms and entities concerning the subject.
f) To issue resolutions about questions referred to the industrial property required by the authorities of the NATIONAL EXECUTIVE, LEGISLATIVE AND JUDICIAL POWERS.
g) Any other function that the legislation in force empowers it, or that as from now are attributed to it concerning the subject under its competence.
ARTICLE 93.- The functions of the Board of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall be the following:
a) To propose to the NATIONAL EXECUTIVE, through the MINISTRY OF ECONOMY AND PUBLIC WORKS AND SERVICES, the reglamentary modifications and the ones of national policy that it considers appropriate in relation with the laws for the protection of the industrial property rights;
b) To issue general instructions for the operation of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY;
c) To exercise the control of the budget collected by the Institute;
d) To hold contests, competitions or exhibitions and grant awards and scholarships so as to encourage the inventive Activity;
e) To appoint the Director of Trademarks, of Industrial Models or Designs, of Technology Transference and the Commissioner and Sub-commissioner of Patents;
f) To appoint the legal countersigns for Trademarks, Industrial Models and Designs and of Technology Transference;
g) To create a Consultative Council;
h) To issue internal regulations;
i) To deal with any petitions that may be submitted before the Institute;
j) To grant the uses contemplated in TITLE II, CHAPTER VIII of the present Law.
k) Any other attribution emerging from the present Law.
ARTICLE 93.- The following shall be functions of the Board of Directors, together with the foreseen by the Law:
a) To propose the policy of the Institute and establish the rules for its compliance.
b) To propose the budget project and perform the annual report of the same.
c) To approve the annual memorandum of the activities of the INSTITUTE.
d) To raise to the NATIONAL EXECUTIVE by means of the MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS the proposals of adhesion of the ARGENTINE REPUBLIC to International Agreements concerning industrial property.
e) To discuss, and in that case to adopt decisions about subjects under its consideration.
f) To create a NATIONAL PRIZE TO THE INVENTION.
g) To assemble the Consultative Council at least once a month.
h) To issue all the decisions which are necessary and inherent to its condition of supreme organism of the INSTITUTE, specially the ones related to the enforcing of the functions established in article 93 of the Law.
ARTICLE 94.-Hereby the NATIONAL ADMINISTRATION OF PATENTS is created, depending of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY. The administration shall be carried by a Commissioner of Patents and a Sub-commissioner, appointed by the Board of the Institute.
ARTICLE 94.- The NATIONAL ADMINISTRATION OF PATENTS shall be in charge of:
a) The proceedings, study and decision of the granting of the applications for letters patent and certificates for utility model.
b) Dealing with proceedings concerning nullity and caducity and control of exploitation of granted patents.
c) Issuing of certificates and authorized copies of the documents contained in the files of its competence.
d) Registering the transfers of granted patents, which must be filed in the shape of a public deed, and of the ones that are still under consideration, for which the certification of the signature of the assignor and the assignee shall be demanded.
e) The notification of its actions concerning decisions and proceedings according to Law 19.549 and its Ruling Decree 1759/72 (O.T. 1991)
f) The issuing of reports and the elaboration of statistics about the functioning, activities and performance of the office.
g) To act together with the department of technological information and with the Legal Council of the INSTITUTE for the adequate application of the international agreements pertaining to the area.
ARTICLE 95.- The NATIONAL EXECUTIVE shall rule the exercise of the functions of the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY.
ARTICLE 95.- Without ruling.
TITLE VIII
FINAL AND TRANSITIONAL PROVISIONS
ARTICLE 96.-The amount of the fines as well as of the tariffs and annuities and their updating shall be established in the regulating decree.
ARTICLE 96.- The fixed amount of the fines as well as of the tariffs and annuities are fixed may be amended by decision of the MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS.
ARTICLE 97.- The patents granted in virtue of the law that is being derogated, shall keep their enforcement all through their effective terms, but they shall remain submitted to the provisions of this Law and its regulation.
ARTICLE 97.-The term of enforcement established in article 35 of Law N. 24.481 shall be applied only to the applications filed after the enforcement of said Law.
ARTICLE 98.- This Law shall not relieve from the requirements established by Law 16.463 for the authorization for the elaboration and commercialization of pharmaceutical products in the country.
ARTICLE 98.- The authorization for the marketing of pharmaceutical products shall be required from the MINISTRY OF HEALTH AND SOCIAL ACTION, and concerning agrochemical products, from the ARGENTINE INSTITUTE OF VEGETAL SANITY AND QUALITY, depending of the SECRETARY OF AGRICULTURE, CATTLE AND FISHING of the MINISTRY OF ECONOMY AND SERVICES AND PUBLIC WORKS .
ARTICLE 99.- As regarding to the patent applications under study at the date this Law goes into effect, it shall not be applicable all what is related to the publication of the application foreseen in article 26 of the present Law, and shall only be published under the terms of article 32.
ARTICLE 99.- Without ruling.
ARTICLE 100.- The invention of pharmaceutical products shall not be patentable before a period of FIVE (5) as from the publication of the present Law in the Official Gazette. Up to that date, none of the articles contained in the present Law concerning the patentability of pharmaceutical products nor any other rules indissolubly related with the patentability of the same shall be in force.
ARTICLE 100.- The patent applications for pharmaceutical products which their first applications in the country or abroad have been filed before January 1, 1995 shall not be accepted unless the applicants claim the priority foreseen the Paris Convention after said date. In no case the first applications used as a base for the starting of the proceeding in the Argentine Republic shall be previous to January 1, 1994. The same criteria shall be followed in the cases of amendment or conversion of patent applications about processes into patents of invention about pharmaceutical products.
ARTICLE 101.- Regardless of what has been established in the precedent article, patent applications for pharmaceutical products may be filed in the form and conditions established in the present Law, which shall be granted after FIVE (5) years as from the publication of the present in the Official Gazette.
The effective term of the mentioned patents shall be the one emerging from the application of article 35.
The owner of the patent shall have the exclusive right over his invention beginning as from FIVE (5) years after the present Law is published in the Official Gazette, unless the same or third parties using the invention without his authorization guarantee the full supply of the internal market at the same actual prices. In that case the owner of the patent shall have the right only to receive a reasonable and fair retribution from said third parties using them as from the granting of the patent up to the end of its effective term. If there should be no agreement between the parties the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall establish said retribution under the terms of article 43. What is established in this paragraph shall be applied unless its modification corresponds so as to comply with the decisions of the Commerce World Organization adopted in compliance with the GATT-TRIP’S agreement, being of obligatory observance in the ARGENTINE REPUBLIC.
ARTICLE 101.- I. Respecting invests concerning pharmaceutical and agrochemical, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall establish the following procedure for the filing of patent applications:
a) it shall establish as from January 1st., 1995 the reception of the patent applications;
b) it shall apply, as from January 1st., 1995 , the same proceeding and patentability, priority and claim criteria than the rest of the patentable matter;
c) it shall grant the patent, if it corresponds, once the transitional period, foreseen in article 100 of the Law, has passed, for the term of TWENTY (20) years as from the filing date.
II. As from the date of expiration of the transitional period, anyone pretending the limitation of the resources available to the owner of the rights about protected matter, the same must have started the acts of exploitation or must have done a significant investment for such acts before January 1st, 1995. In case that end is verified, the owner of the patent shall have the right to perceive the compensation provided in article 102, third paragraph of the Law. The authorization shall not be conferred if the owner of the patent guaranteed the full supplying of the internal market at the same actual prices. What has been provided in this article shall be applied unless an amendment corresponds so as to comply with the decisions of the World Marketing Organization being of obligatory observance for the ArgentineRepublic.
III.- The application of the exclusive rights for marketing during the transitional period shall be filed before the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY enclosing the necessary elements, so it certifies the following:
1) that the product is the object of a patent application before the organism;
2) that after January 1st., 1994, a patent application was filed in order to protect the same product in another country member of the TRIP’S-GATT, verifying the coincidence between both filings;
3) that a patent has been granted for that product in another country member of the TRIP’S-GATT,
4) that an approval for marketing has been obtained in another country member of the TRIP’S-GATT.
Having been verified such instances, the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY shall issue a decision concerning the granting of the exclusive rights of marketing in the Argentine Republic for a term of FIVE (5) years as from the approval of marketing in the ARGENTINE REPUBLIC, except that the permit shall end before that term if, previously the patent application filed before the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY is granted or rejected, or the authorization of marketing in another country member is revoked.
The granting of the exclusive rights for marketing shall depend on the authorization of the competent organisms, according to what is provided in article 98 of this ruling.
ARTICLE 102.- Patent applications filed abroad and before the entering in effect of the present law whose matters are not patentable under Law 111 but are patentable according to the present Law, may be filed in the country provided that the following conditions are complied with:
a) That the first application has been filed within the year previous to the enactment of the present Law;
b) That the applicant proves in the terms and conditions provided in the ruling decree that the patent application has been filed in a foreign country;
c) That the exploitation or the import at commercial scale of the invention has not been started;
d) The effective term of the patents granted under the provisions of this article, shall end in the same date that it does so in the country where the first application has been filed, provided it does not surpass the term of TWENTY (20) years established by this Law.
ARTICLE 102. The filing of patent applications filed abroad before the sanctioning of the law shall be made before the NATIONAL INSTITUTE OF THE INDUSTRIAL PROPERTY that shall elaborate, for these effects, a special form that shall have the force of a sworn statement, under the terms of article 102 of the law and under the observance of article 100 of this ruling.
ARTICLE 103.- The article 5 of Law 22.262 is derogated.
ARTICLE 103.- Without ruling.
ARTICLE 104.- The NATIONAL EXECUTIVE shall issue the rules of the present Law.
ARTICLE 104.- Without ruling.
ARTICLE 105.- Be it communicated to the NATIONAL EXECUTIVE.
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