Every patent has an invention, that is, a technical solution to a technical problem (BARBOSA, 2022). Note that the solution must be both useful and technical. This means that what is aesthetic and not useful, is not patentable. Similarly, if it has practical utility but does not have a technical problem, it is not patentable. But that's not all: in order to be configured as a patentable invention, there must be a technical leap that represents an advance in relation to the knowledge already available to the public in the state of the art (BERGEL, 1996), which is the set of information that has already become accessible to the public - whether in written or oral form - before the patent application.<\/p>\n
The state of the art is one of the most important concepts in relation to patents. As a rule, the state of the art is constituted by everything made available to the public before the date of filing of the Patent Application, and this disclosure may occur in written or oral form, by use or any other means, in Brazil or abroad (Art. 11, \u00a7 1 of the Industrial Property Law \u2013 LPI). Some examples of disclosure that, in theory, prevent patent protection by placing the invention in the state of the art: sale of the product; exhibition of technology at fairs or events; presentation or publication of descriptive academic work on the technology, etc.<\/p>\n
However, there is an exception to the state of the art, even if for a certain period of time. It is the so-called \"Grace Period\", determined in Article 12 of the Industrial Property Lay. The grace period is a 12-month interval that allows the inventor to publicize his invention before applying for the patent, without compromising the novelty of his invention. Grace, being an exception to the general principle of novelty, must be applied restrictively. Specifically, the disclosure of an Invention or Utility Model will not be considered as state of the art, when it occurs during the twelve (12) months preceding the filing date or the date of the earliest priority of the Patent Application, if such disclosure is promoted by the inventor himself or by third parties, based on information obtained directly or indirectly from the inventor or as a result of acts performed by him.<\/p>\n
The grace period is a strategic resource for inventors and researchers. It provides the opportunity to test the market, seek funding, and enhance the invention before filing a patent application. This period varies according to the legislation of each country, but it usually lasts from 6 to 12 months. It is important to remember that most countries do not grant the grace period, which means that once the matter is revealed by any means, the request is in the public domain for that country that does not recognize the institute. Thus, as few countries admit and consider the grace period, which is not provided for in international acts, in many cases the use of the grace period, even if it is accepted in Brazil, will mean the loss of the right to apply for a patent abroad (BARBOSA and BARBOSA, 2017), so it should be used with some caution.<\/p>\n
Importantly, the grace period is not a license to indiscriminately publicize the invention. There are specific requirements and limitations established by patent law, such as the obligation for the disclosure to be made by the inventor himself and that it is related to the invention to be patented. The three hypotheses of disclosure without compromising the novelty of the invention, that is, of application of the grace period, are determined by Article 12 itself: (I) when the disclosure is promoted by the inventor himself; (II) when the disclosure is promoted by the Brazilian Patent and Trademark Office (BPTO), through the official publication of the patent application filed without the consent of the inventor, based on information obtained by the inventor or as a result of acts performed by him; or (III) by third parties, based on information obtained directly or indirectly from the inventor or as a result of acts performed by the inventor.<\/p>\n
The grace period in the Brazilian patent system is a valuable tool for inventors, providing a strategic opportunity to develop and commercialize their innovations. However, its use requires caution and planning to ensure that the benefits outweigh the potential risks and challenges associated with early disclosure of the invention. To avoid problems and ensure patent protection in several countries, it is always recommended to first file the patent application and then start the dissemination of the invention.<\/p>\n
<\/p>\n
By Daniela Lopes Ferreira \u2013 Attorney-at-Law; Specialization in course in Intellectual Property by PUCRJ; Graduated in Law by UFRGS.<\/em><\/p>\n <\/p>\n Refer\u00eancias bibliogr\u00e1ficas:<\/p>\n BARBOSA, Denis Borges. Tratado da Propriedade Intelectu al. Tomo II, 2 ed. Lumen Juris, 2022.<\/p>\n BARBOSA, Pedro Marcos Nunes. BARBOSA, Denis Borges. O c\u00f3digo da propriedade industrial conforme os tribunais:comentado com precedentes judiciais:volume 1: patentes. \u2013 Rio de Janeiro: Lumen Juris, 2017.<\/p>\n BERGEL, Salvador D. (coordinador). Derecho de Patentes. El nuevo r\u00e9gimen legal de las invenciones y los modelos de utilidad. Buenos Aires: Ediciones Ciudad Argentina, 1996. p. 22.<\/p>","protected":false},"excerpt":{"rendered":" Toda patente tem um invento, ou seja, uma solu\u00e7\u00e3o t\u00e9cnica para um problema t\u00e9cnico (BARBOSA, 2022). Note que a solu\u00e7\u00e3o deve ser ao mesmo tempo \u00fatil e t\u00e9cnica. Isso significa que o que \u00e9 est\u00e9tico e n\u00e3o \u00fatil, n\u00e3o \u00e9 patente\u00e1vel. Da mesma forma, se tiver utilidade pr\u00e1tica, mas n\u00e3o tiver um problema t\u00e9cnico, n\u00e3o […]<\/p>\n","protected":false},"author":21,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-8253","post","type-post","status-publish","format-standard","hentry","category-leao-news"],"acf":[],"_links":{"self":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/8253","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/comments?post=8253"}],"version-history":[{"count":1,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/8253\/revisions"}],"predecessor-version":[{"id":8254,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/8253\/revisions\/8254"}],"wp:attachment":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/media?parent=8253"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/categories?post=8253"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/tags?post=8253"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}