/ Provisional Patents

With the new industrial property law, Chile will incorporate in its legislation the institution of the provisional patent, excellent news for all local innovators.

Santiago Ortúzar
Partner Alessandri

In almost all jurisdictions around the world, the requirement that the patent application must have novelty at the time of filing creates a great dilemma for innovators who wish to protect their invention. If they make it known before filing, the application will be rejected for lack of novelty.

The problem is that, in accordance with patent law requirements, more experimentation and testing is often required before it is well defined. Universities, moreover, move between the requirement to publish and the need to protect those inventions that could have commercial potential.

Other countries have solved these problems with provisional patents, which are those that are filed knowing that they are not complete, but their filing sets a date for purposes of determining the novelty and inventive level of an application. With the new industrial property law, Chile will incorporate in its legislation the institution of the provisional patent, which is certainly excellent news for all local innovators, since its grace lies in the fact that it is granted with few formal requirements giving the holder the priority over the subject matter covered by the provisional patent without having to comply with all the requirements of a normal patent application.

The introduction of provisional patents means a change in the strategy for the commercialization of inventions and their presentation to potential interested parties, as well as in the degree of certainty that should be had in relation to the application. We can now file an application without the need to have the invention completely defined, without the risk of losing the benefits of an invention patent. Moreover, once the provisional application is filed, patentees can continue experimenting to better define the patent without the risk of affecting the novelty.

In a world where every innovation is relevant for companies to maintain their competitive advantages, this new institution can only be welcomed with euphoria, for the great benefits it means for local inventors and the boost it will give to our local innovation.