Archive for the ‘Commercial Law’ Category
Pearl and Dean, Inc v. Shoemart Inc (2003)
To be able to effectively and legally preclude others from copying and profiting from the invention, a patent is a primordial requirement. No patent, no protection. The ultimate goal of a patent system is to bring new designs and technologies into the public domain through disclosure. Ideas, once disclosed to the public without the protection of a valid patent, are subject to appropriation without significant restraint.
1.1. Inventions
Sec. 21. Patentable Inventions. - Any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. (Sec. 7, RA 9150)
Sec. 23. Novelty. - An invention shall not be considered new if it forms part of a prior art. (Sec. 9, RA 165a)
Sec. 24. Prior Art. – Prior art shall consist of:
24.1. Everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the application claiming the invention; and
24.2. The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in both applications are not one and the same. (Sec. 9, RA 9150)
Sec. 26. 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.
Sec. 27. Industrial Applicability. – An invention that can be produced and used in any industry shall be industrially applicable.
Lay-out Designs (Topographies) of Integrated Circuits
Sec. 112.2 Integrated Circuit means a product, in its final form, or an intermediate form, in which the elements, at least one of which is an active element and some or all of the interconnections are integrally formed in and/or on a piece of material, and which is intended to perform an electronic function; and
Sec. 112.3 Layout-Design is synonymous with ‘Topography’ and means the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. – reference: Republic Act 9150
Sec. 29. First to File Rule. – If two (2) or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date. (3rd Sentence, Sec. 10, RA 165a.) – Patent Law – Republic Act 9150
Utility Model
Sec. 109.1 (a) An invention qualifies for registration as a utility model if it is new and industrially applicable.
(b) Section 21, “Patentable Inventions”, shall apply except the reference to inventive step as a condition of protection.
Industrial Designs
Sec. 112.1 An Industrial Design is any composition of lines or colors or any three-dimensional form, whether or not associated with lines or colors: Provided, That such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. – taken from Republic Act 9150
Contents of the Application for Patent
Sec. 32. The Application. -
32.1. The patent application shall be in Filipino or English and shall contain the following:
(a) A request for the grant of a patent;
(b) A description of the invention;
(c) Drawings necessary for the understanding of the invention;
(d) One or more claims; and
(e) An abstract.
32.2. No patent may be granted unless the application identifies the inventor. If the applicant is not the inventor, the Office may require him to submit said authority. (Sec. 13, RA 165a)
Sec. 34. The Request. – The request shall contain a petition for the grant of the patent, the name and other data of the applicant, the inventor and the agent and the title of the invention.
Sec. 35. Disclosure and Description of the Invention. -
35.1. Disclosure. – The application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. Where the application concerns a microbiological process or the product thereof and involves the use of a micro-organism which cannot be sufficiently disclosed in the application in such a way as to enable the invention to be carried out by a person skilled in the art, and such material is not available to the public, the application shall be supplemented by a deposit of such material with an international depository institution.
35.2. Description. – The Regulations shall prescribe the contents of the description and the order of presentation. (Sec. 14, RA 165a)
Sec. 36. The Claims. -
36.1. The application shall contain one (1) or more claims which shall define the matter for which protection is sought. Each claim shall be clear and concise, and shall be supported by the description.
36.2. The Regulations shall prescribe the manner of the presentation of claims.
Sec. 37. The Abstract. – The abstract shall consist of a concise summary of the disclosure of the invention as contained in the description, claims and drawings in preferably not more than one hundred fifty (150) words. It must be drafted in a way which allows the clear understanding of the technical problem, the gist of the solution of that problem through the invention, and the principal use or uses of the invention. The abstract shall merely serve for technical information.
Procedure For Grant of Patent
Filing Date
Sec. 40. Filing Date Requirements. -
40.1. The filing date of a patent application shall be the date of receipt by the Office of at least the following elements:
(a) An express or implicit indication that a Philippine patent is sought;
(b) Information identifying the applicant; and
(c) Description of the invention and one (1) or more claims in Filipino or English.
40.2. If any of these elements is not submitted within the period set by the Regulations, the application shall be considered withdrawn.
Sec. 41. According a Filing Date. - The Office shall examine whether the patent application satisfies the requirements for the grant of date of filing as provided in Section 40 hereof. If the date of filing cannot be accorded, the applicant shall be given an opportunity to correct the deficiencies in accordance with the implementing Regulations. If the application does not contain all the elements indicated in Section 40, the filing date should be that date when all the elements are received. If the deficiencies are not remedied within the prescribed time limit, the application shall be considered withdrawn.
1. Formality Examination
Sec. 42. Formality Examination. -
42.1. After the patent application has been accorded a filing date and the required fees have been paid on time in accordance with the Regulations, the applicant shall comply with the formal requirements specified by Section 32 and the Regulations within the prescribed period, otherwise the application shall be considered withdrawn.
42.2. The Regulations shall determine the procedure for the re-examination and revival of an application as well as the appeal to the Director of Patents from any final action by the examiner. (Sec. 16, RA 165a)
Classification and Search
Sec. 43. Classification and Search. - An application that has complied with the formal requirement shall be classified and a search conducted to determine the prior art.
Inspection of Patent Application
Sec. 45. Confidentiality Before Publication. – A patent application, which has not yet been published, and all related documents, shall not be made available for inspection without the consent of the applicant.
Sec. 44.2. After publication of a patent application, any interested party may inspect the application documents filed with the Office.
Sec. 47. Observation by Third Parties. - Following the publication of the patent application, any person may present observations in writing concerning the patentability of the invention. Such observations shall be communicated to the applicant who may comment on them. The Office shall acknowledge and put such observations and comment in the file of the application to which it relates.
6.3. Publication
Sec. 44. Publication of Patent Application. -
44.1. The patent application shall be published in the IPO Gazette together with a search document established by or on behalf of the Office citing any documents that reflect prior art, after the expiration of eighteen (18) months from the filing date or priority date.
44.3. The Director General, subject to the approval of the Secretary of Trade and Industry, may prohibit or restrict the publication of an application, if in his opinion, to do so would be prejudicial to the national security and interests of the Republic of the Philippines.
PURPOSE OF BULK SALES LAW
1. To prevent the defrauding of creditors by the secret sale or disposal or mortgage in bulk of all or substantially all of a merchant’s stock of
goods.
2. To prevent secret or fraudulent sale or mortgage of goods in bulk until the creditor of the seller shall have been paid in full.
IMPORTANT: The law covers all transactions, whether done in good faith or not, or whether the seller is in a state of insolvency or not, as long as
the transaction falls within the description of what is a “bulk sale.”