We will start by asking ourselves the following question: What is a patent?
A patent is understood as a certificate granted by the State in which it recognizes that an invention has been made and that it belongs to the owner of the patent, granting him the exclusive right to prevent third parties from copying, using, distributing, selling or exploiting his invention without his consent and for a specified time in the territory whose registration has been requested.
This certificate is issued in El Salvador through the Patent Department of the Intellectual Property Registry of the National Registry Center.
In El Salvador, the following industrial property is protected by a patent:
a) Inventions: an invention is understood as an idea applicable in practice to the solution of a specific technical problem. An invention may refer to a product, a procedure, a device, new or to a refinement or improvement thereof.
b) Utility models: utility model is understood as any form, configuration or arrangement of elements of any device, tool, instrument, mechanism or other object, or any part of it, that allows a better or different operation, use or manufacture of the object that incorporates it, or that you provide it with any utility, advantage or technical effect that it did not have before.
However, for this industrial property to be protected, certain patentability requirements must be met. According to the Intellectual Property Law of El Salvador, an invention will be patentable when it is capable of industrial application, is novel and has an inventive step.
Next, we will explain each of the patentability requirements:
1) Industrial application (utility): means that the invention must be able to be manufactured, produced or used in any type of industry or productive activity, the term industry understood in its broadest sense and will include agriculture, animal husbandry, mining, fishing, construction and services. If the invention refers to a product, it is necessary that someone can make the product. If the invention is a process, it must be possible to carry out said process.
2) Novelty: that the invention must contain a novel feature, it must not have been invented, made or used previously in the state of the art. The state of the art shall include everything disclosed or made accessible to the public, anywhere in the world, by tangible publication, oral disclosure, sale or trade, use or by any other means, including the internet, before the filing date of the foreign application whose priority will be claimed. It includes the state of the art, the content of a patent application pending before the Intellectual Property Registry, whose filing date or, where appropriate, priority, was prior to that of the application being examined, but only to the extent that this content is included in the application dated earlier when it was published.
Disclosure that occurred within the year preceding the filing date of the application in the country or, as the case may be, within the year preceding the date of the application whose priority will be claimed, will not be taken into consideration, provided that such disclosure would have resulted directly or indirectly from acts carried out by the inventor himself or his successors in title, or from a breach of trust, breach of contract or illegal acts committed against any of them.
3) Inventive step: it must present a sufficient advance in relation to the state of the art, that is to say that the novel characteristic could not be deduced by a person skilled in this technical matter. The person skilled in the art is hypothetical with average knowledge in the sector to which the invention refers, who is aware of the existing general knowledge, who has access to the state of the art and also has the necessary means to carry out experimentation.
But for a patent application to be granted, more requirements than those mentioned above must be met, mainly: unity of invention, clarity, sufficiency of the specification and not adding new matter during the registration procedure.
Once the Intellectual Property Registry verifies that the patent application complies with the patentability requirements and after the respective registration process has elapsed, it will grant the title of patent of invention, which will be for a non-extendable period of twenty years, which will be counted from the filing date of the international application or of the application filed in El Salvador, depending on the filing method of the patent application.
On the other hand, it is important to indicate that it cannot be patented in El Salvador:
1) Discoveries, scientific theories and mathematical methods;
2) The economic plans, principles or methods of advertising or business, those related to purely mental or intellectual activities and those related to gambling;
3) Surgical, therapeutic or diagnostic methods of treatment, applicable to the human or animal body; except products intended to put into practice any of these methods; and
4) Inventions whose publication or industrial or commercial exploitation would be contrary to public order or morality.
In the case of utility models, in order to be registrable, they must meet the following patentability requirements:
- Novelty; and
- Be capable of industrial application.
A utility model will not be considered novel when it does not provide any distinguishable utilitarian characteristic with respect to the state of the art. Procedures may not be subject to protection under the utility model; chemical, biological, metallurgical or any other substances or compositions; and the matter excluded from protection by patent of invention that we already explained previously.
After verifying that the requirements of novelty and industrial application are met, the Registry of Intellectual Property and the legal registry procedure is followed, it will issue a utility model patent certificate, which will be valid for ten non-renewable years, counted from from the filing date of the international application or of the application filed in El Salvador, depending on the filing method of the utility model application.
Finally, we will talk about another form of industrial property that obtains a protection title in El Salvador, industrial designs. An industrial design is understood as any two-dimensional or three-dimensional shape that, incorporated into a utilitarian product, gives it a special appearance, and that is suitable to serve as a type or model for its manufacture. The protection does not include those design elements or characteristics that qualify as utility models.
For an industrial design to be protected, it must meet the novelty patentability requirement, that is, it must be new. An industrial design will be considered new if it has not been disclosed or made accessible to the public, in El Salvador, through a tangible publication or through sale, marketing, use, or any other means. The novelty is territorial. An industrial design will not be considered new when it only presents minor or secondary differences with previous ones, or only refers to or applies to another type of product.
The registration of an industrial design will be granted for ten years from the date of filing of the application in El Salvador.