PATENTS

What is a Patent?

A patent is a grant issued by the government through the Intellectual Property Office of the Philippines (IPOPHL). It is an exclusive right granted for a product, process or an improvement of a product or process which is new, inventive and useful. This exclusive right gives the inventor the right to exclude others from making, using, or selling the product of his invention during the life of the patent.

How long is the term of protection of a patent invention in the Philippines?

A patent invention has a term of 20 years from the filing date of the application – thus providing an inventor significant commercial gain. In return, the patent owner must share the full description of the invention. This information is made available to the public in the form of the Intellectual Property Official Gazette and can be utilized as basis for future research and will in turn promote innovation and development.

What are the requirements for patentability?

The IP Code has set three conditions for an invention to be deemed patentable: it has to be new, involves an inventive step, and industrially applicable.

New

An invention is not considered new if it already forms part of the domain of prior art. The "prior art" is defined in Sec.24.1 of the IP Code as consisting of "everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the Philippine application claiming the invention”.

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Inventive Step

An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention.

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Industrially applicable

An invention that can be produced and used in any industry is considered industrially applicable.

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What kinds of inventions are patentable?

A patentable invention may consist/relate to any of the following:

  1. A product, such as a machine, a device, an article of manufacture, a composition of matter, a microorganism;
  2. A process, such as a method of use, a method of manufacturing, a non-biological process, a microbiological process;
  3. Computer-related inventions; and
  4. An improvement of any of the foregoing.

What kinds of inventions are non-patentable?

The following are non-patenable inventions:

  1. Discoveries, scientific theories, and mathematical methods, a law of nature, a scientific truth, or knowledge as such;
  2. Abstract ideas or theories, fundamental concepts apart from the means or processes for carrying the concept to produce a technical effect;
  3. Schemes, rules, and methods of performing mental acts and playing games;
  4. Method of doing business, such as a method or system for transacting business without the technical means for carrying out the method or system;
  5. Programs for computers;
  6. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and compositions for use in any of these methods;
  7. Plant varieties or animal breeds or essentially biological process for the production of plants and animals. This provision shall not apply to microorganisms and non-biological and microbiological processes;
  8. Aesthetic creations; and
  9. Anything which is contrary to public order, health, welfare, or morality, or process for cloning or modifying the germ line genetic identity of humans or animals or uses of the human embryo.

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Who has a right to a patent invention?

The right to a patent belongs to the inventor, his heirs or assigns. When two (2) or more persons have jointly made an invention, the right to a patent belongs to them jointly.

If two (2) or more persons have made the invention separately, and independently of each other, the right to the patent belongs to the person who first filed an application for such invention.

The person who commissions the work has the right to the patent, unless otherwise provided in the contract.

In case the employee made the invention in the course of his employment, the right to the patent belongs to: (a) the employee, if the inventive activity is not part of his regular duties even if the employee uses the time, facilities and materials of the employer; (b) the employer if the invention is the result of the performance of his regularly assigned duties, unless there is an agreement, express or implied, to the contrary.

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What are the Routes available in filing a patent application in the Philippines?

A patent application in the Philippines may be filed through any of two (2) Routes, namely:

Patent Cooperation
Treaty (PCT) Route
Direct (Non-PCT)
Route

Utility Model and Industrial Design

Utility Design

A utility model is a protection option designed to protect innovations that are not sufficiently inventive to meet the inventive threshold required for standard patents application. Utility model registration is intended to accommodate local industries, small businesses or entities by providing...

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Industrial Design

An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns lines or color. To be protected under most national laws, an industrial design...

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How do I maintain my patent registration/application in the Philippines?

In order to keep a patent application or registration in active status, payment of the required annuity fees must be made annually. For direct route patent applications, the first annual fee is due and payable on the expiration of four (4) years from the date of publication in the Philippine IPO Gazette. Subsequent annual fees shall be due on each subsequent anniversary of such date

Payment of the annuity fee may be made 3 months before the due date.

Failure to timely pay the required annuity fee will cause the patent application or registration to be deemed withdrawn or the patent shall be considered as lapsed from the day following the expiration of the period within which the annual fee was due.

A grace period of six (6) months shall be granted for the payment of the annual fee, upon payment of the prescribed surcharge for delayed payment.

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What are the procedures from application filing until patent grant?

Formality Examination

After filing the patent application, formality examination will be conducted. The examiner will issue an official action containing his findings as to whether or not formality requirements have been completed. Applicant must respond within two months from the mailing date of the Official Action. For justifiable reasons, an extension of time (2 months) may be requested. Failure to respond to the office action within the deadline (or extended deadline) will cause the application to be deemed abandoned.

How do I maintain my patent registration/application in the Philippines?

In order to keep a patent application or registration in active status, payment of the required annuity fees must be made annually. For direct route patent applications, the first annual fee is due and payable on the expiration of four (4) years from the date of publication in the Philippine IPO Gazette. Subsequent annual fees shall be due on each subsequent anniversary of such date

Payment of the annuity fee may be made 3 months before the due date.

Failure to timely pay the required annuity fee will cause the patent application or registration to be deemed withdrawn or the patent shall be considered as lapsed from the day following the expiration of the period within which the annual fee was due.

A grace period of six (6) months shall be granted for the payment of the annual fee, upon payment of the prescribed surcharge for delayed payment.

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What are the procedures from application filing until patent grant?

Formality Examination

After filing the patent application, formality examination will be conducted. The examiner will issue an official action containing his findings as to whether or not formality requirements have been completed. Applicant must respond within two months from the mailing date of the Official Action. For justifiable reasons, an extension of time (2 months) may be requested. Failure to respond to the office action within the deadline (or extended deadline) will cause the application to be deemed abandoned.

Substantive Examination

The patent application will be examined on its merits, i.e. if it meets all the requirements for patentability, if the specification and claims are properly drafted. During this period, the examiner may allow the application or reject it based on his findings. The applicant will be given the chance to respond, amend or rebut the objection of the examiner within two months from the mailing date of the examiner’s action.

Allowance

The patent application will be recommended for allowance if the examiner finds no reason to refuse or if the reasons for refusal have been satisfactorily argued or overcome by amendments or corrections. Applicant will be advised to pay the second publication fee and issuance fee (for patent certificate of registration) and submit the required formalities, if any.

Grant of Patent

Normally, it takes about three to six years for a patent to be granted, depending on the complexity of the subject matter, the issues that are raised during substantive examination, among other reasons.

How long is the term of protection of a patent invention in the Philippines?

For an application filed through the PCT route, the term is twenty (20) years from the international filing date of the application.

For an application filed through the direct (non-PCT) route, the term is twenty (20) years from the filing date in the Philippines.

What are the rights conferred to a patent owner in the Philippines?

Under Section 71 of the Intellectual Property Code of the Philippines, the patent owner has the following exclusive rights:

  • Where the subject matter of a patent is a product, the patent owner has the right to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product;
  • Where the subject matter of a patent is a process, the patent owner has the right to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process; and
  • Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same.

What will it cost to get a patent?

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