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When Can You Patent an Invention?

06 Apr 2017

Patenting an invention is the most effective way to protect the economic rights of the inventor. Patents provide the exclusive rights that allow a company to use, exploit and commercialize the invention for a certain number of years, usually 20 years. Moreover, granting an exclusive right of economic exploitation also provide an indirect incentive for making new inventions.

The relevance of patents for the economic development was already clear in Brazil in 1809, when King João VI issued a Royal Decree establishing a Patent Law, at the forefront of legal innovation.

Requirements for patentability

When can an invention be patented? Both in the Brazilian and Argentinian legal systems an invention can be patented provided that it is: novel, involves an inventive step and is capable of industrial application.

Novelty means that the invention should be new, that is, it is not part of the state of the art because it has not been disclosed before. There must be an absolute novelty, the invention must be new worldwide. However, both in Brazil and Argentina the inventor is granted a sort of a “grace period”: the invention can still be patented even if it was made public within 12 months prior to the date of the application.

The second requirement is the inventive step: an invention involves an inventive step when it doesn’t derive from the state of the art, in other words, is not obvious to someone of ordinary skilled in the relevant area.

The third requirement is the one of industrial applicability: the invention can be patented if it can have industrial application. Inventions which are merely theoretical cannot be patented even if they are novel and inventive.

Under art.10 of Brazilian Patent law, a series of activities are not considered inventions: among these are discoveries, scientific theories and mathematical methods, abstract concepts, literary works, computer programs, rules for games, methods of treatment applied to the human or animal body and natural living beings and biological materials found in nature. A similar list of exclusions is provided by Argentine Patent Law, which denies patentability to discoveries, raw materials preexisting in nature, plants, animals, literary works, scientific theories, mathematical methods and methods of treatment applied to the human or animal body. While neither system considers software as patentable, it is assumed that this exclusion does not stretch to include combinational claims with hardware: for instance, if the software is used to control a machine, a patent can still be issued for the machine.

Furthermore, Brazilian IP law forbids the patentability of inventions contrary to morality, decency or public safety, order and public health, and of substances resulting from the transformation of the atomic nucleus and of living beings with the exception of transgenic microorganisms if they possess the requirements of novelty, inventiveness and industrial application. Similarly, Argentina IP law rejects patents against public policy, morality, good health or life of human beings or animals, vegetable preservation, or patents that might cause serious damages to the environment.

It is interesting to note that, before the new Patent law came into force in 1997, it was not possible to patent pharmaceuticals in Brazil. Similarly, in Argentina, the INPI began issuing pharmaceutical patents for the first time in 2000, after the new Patent Law was issued in 1995.


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