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20 October 2008
In Argentina, patents and utility models are governed by Law 24,481 (as amended by Laws 24,572 and 25,859) and by Regulatory Decree 260/96. Under this patent legal regime, any foreign or national individual or legal entity is entitled to obtain a patent in connection with product inventions or processes, provided that they:
Such patents are granted for a term of 20 years (starting from the application filing date) and are subject to annuity payments.
The patent law also provides for civil and criminal actions - including preliminary injunctions - in connection with patent rights infringement.
One positive aspect of the patent regime is that, unlike many other similar statutes, the Constitution explicitly sets forth in Article 17 that innovators are entitled to property rights for their inventions. However, the patent law also contains some deficiencies and ambiguities. As a result, it does not adequately protect patent rights and thus generates considerable legal uncertainty. In the past, the absence of proper levels of patent rights protection has prevented research-based international companies from effectively competing in Argentina.
Adequate patent protection requires proper legal enforcement. The Argentine Patent Office (INPI) faces a major backlog of patent filings because the number of applications that the INPI has resolved is significantly lower than the number of applications that have been filed. Such a backlog also causes problems due to the lack of space at the INPI.
In order to address such problems, the INPI recently enacted two new resolutions: Resolution 178/08 and Resolution 213/08.
Resolution 178/08 will have a strong impact on the prosecution of patent applications if the applicant does not comply with the requirements thereof.
By means of Resolution 178/08, the INPI now requires all patent applicants that filed an application prior to January 1 2008 to submit, within a 90-day period, a declaration stating whether the foreign priority which was claimed at the time of filing was granted in the country of origin. The 90-day period will expire on October 30 2008. This deadline is not extendable.
In order to comply with this resolution, it is possible to submit a list of Argentine patent applications and merely indicate whether the foreign priority has been granted. If no answer is filed by the deadline, the application will be declared abandoned and subsequently removed from the list of pending applications to be examined.
The resolution is intended to make all applicants declare their continuous interest in prosecuting their pending patent applications and eventually reduce prosecution backlog by declaring abandoned those applications lacking this declaration.
Resolution 213/08 establishes a procedure whereby the INPI will remove the international priority document established under the Paris Convention from the application file and return it to the owner, reserving the right to subsequently request it if necessary.
Likewise, from the moment the resolution comes into force, translations of international priority documents established under the Paris Convention must be filed in digital media (CD-ROM).
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