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Provisional Patent Application in Portugal

Inventors in Portugal do not protect much of the technology associated with their inventions by means of Industrial Property rights, as indicated by the low number of national invention applications, which throughout the 80s and 90s amounted to a total of approximately 150 applications per year in Portugal.
At the beginning of the new century, there was an increase in the number of patent applications, due to the contribution of a series of new measures and economic and social incentives. The creation in 2001 of the first SOPIP (Support Office for the Promotion of Industrial Property), the new Industrial Property Code (IPC) of 2003, as SIUPI (System of Incentives for the Use of Industrial Property) in 2007 in the framework of IPMEA – Incentives Programme for the Modernisation of Economic Activities, revision of the ICC on 25 July, 2008, passed by Decree-Law No. 143/2008 and the Support Line to the Internationalization of Patents (SLIP) 2009, were some of the mechanisms which, among others, have contributed to this positive trend.

One of the most significant promotional measures occurred precisely from 1 October, 2008, when it became possible to submit Provisional Application for Patent (PAP) in Portugal under Article 62. º-A of the 2008 IPC. The Provisional Application for Patent arose of course as a tool of interest, due to its more simplified structure, low cost, confidentiality, the possibility of requesting an investigation into the state of the art, the priority date and even the possibility of presenting texts in English. This measure is considered a success because it is allowed for continuity and even increasing the number invention registration applications. Between October 2008 and December 2009, the PAP represented 41% of all domestic inventions. In 2009, as many as 665 invention applications were made by residents in Portugal and the expectation for 2010 was to reach the coveted total of 1000 applications per year by domestic residents.

It is nevertheless noteworthy that of the 1000 invention applications expected for the year 2010 about half will be temporary and, according to historical data of the PIIP (Portuguese Institute of Industrial Property) only about 33% of them should exhibit a high patentability potential. If on the one hand, the simplified structure of PAP is what makes it worthwhile, they must also be analysed for their technical content. We have established that the vast majority of PAPs have clearly inadequate content, because they do not have the essential technical characteristics of inventions, thus not justifying being made regular patent applications, according to Article 62. IPC-B No. 2008, which may involve problems or even loss of priority date.

Problems at this level are very important, since the deposit of low-content PAPs may involve the aforementioned problems, and even the loss of novelty of the technology, if the priority date is not kept and in the meantime the technology is made public. In this respect the decision of the applicants is taken into account, considering that they are eligible to deposit PAPs, without resorting to the services of specialised administrative and technical professionals. It is therefore important to mention that of all the PAPs deposited between October 2008 and December 2009, only 22% were accompanied by an official specialist agent.

It is to be expected that a large part of the PAPs presented by an agent have a high patentability potential and that most of them will become patents, with low risk of losing the protection afforded to technology, so we set the challenge regarding this matter, confirmed by the data presented.

Carmen Sánchez-Puelles