Draft Bill on Provisional Protection for Patent Applications in Argentina

Its purpose is to fill a legal gap: although some legal authors have held that provisional protection already exists in Argentina, the Argentine Patent Law does not expressly provide for the possibility to sue the infringer of a patent application. The main reason for this proposal is the extended period between the filing of the application and its grant. Currently the average time exceeds six years, and keeps increasing.

The bill –taken almost verbatim from sections 59 and 60 of the Spanish Patent Law– provides that a patent application shall confer to its owner the right to claim a reasonable compensation from any third party who has illegally used the invention after publication of the application, or even before if the third party was duly informed of its existence and contents. If the patent application is not successful -because the applicant withdrew it or the Patent Office rejected it- the claim will be dismissed because for the bill under these conditions the patent application has no legal effect.  The protection is retroactively limited to the scope of the granted claims.

Finally, the bill provides that a party who has been accused of having infringed a patent application may request the Patent Office to have access to the official file.