The Supplementary Protection is the right to request before the Intellectual Property Court more time of Patent protection, due to unjustified delay in the administrative procedure of the patent application.

All type of patent application that was granted can be eligible to the supplementary protection, regardless whether they are form the mechanical, pharmaceutical or chemical area, or even designs and utility models can be eligible, of if they do not cover a current active development project or if they are a research tool patent, as long as they meet the following requirements:

  • The term of the prosecution of the patent application exceeded five years from filing date to the granting date of the application or of three years from the requirement for examination, whichever occurs after.
  • The supplementary protection is requested within six months after the granting of a patent, as long as there has been an unjustified administrative delay in the granting of the patent.

The Supplementary Protection procedure is as follows:

  1. The Chilean PTO issues its final decision, granting the patent application.
  2. There are 6 months to file the Supplementary Protection brief.
  3. The procedure to obtain additional protection begins when we filed the Supplementary Protection brief to the Intellectual Property Court, with a detail of every month of delay that were unjustified by the Chilean PTO.
  4. The Intellectual Property Court asks for a written report to the Chilean PTO, where they have to explain the reasons for the delay in the patent application procedure.
  5. The Intellectual Property Court notifies the date of the hearing in an audience and cite to the applicant to argue the application and defend it orally.
  6. The oral hearing (allegations) have place before the Intellectual Property Court.
  7. The Intellectual Property Court issues its final decision granting the extension of time of protection of the patent.

After that, the supplementary protection will be object of a side annotation in the registration of the patent, previous payment of a fee of a 1 UTM (almost $62 Euros) for each year or fraction of it of additional protection. The payment has to be done within the six months previous to the expiration of the original validity term of the patent.

Then according to our patent Law, the supplementary protection will only extend for the period proved as unjustified administrative delay.