By: Ruth Olivares
“The best way to predict the future is to create it – Abraham Lincoln”
Patenting means protecting and is a key factor in the current competitive market, since patents generate exclusive rights in favor of their owner, with which their owner can negotiate and obtain a greater economic advantage. To do this, it is important to first understand what it is. a patent, and how it works in the Guatemalan market.
What is a Patent?
The Industrial Property Law in Guatemala, Decree Law 57-2000, offers us a definition of Patent, pointing out that this is: “The title granted by the State that protects the right of the inventor or the owner with respect to an invention, whose effects and scope are determined in the Law.”
Likewise, the World Intellectual Property Organization (WIPO) defines a Patent as: “An exclusive right granted over a product or a process that, generally, offers a new way of doing something or a new technical solution to a problem" [1]
In Guatemala, Invention Patents are regulated by Article 91 of the Industrial Property Law, and it establishes that inventions must have three requirements to be subject to Patent protection, these being:
- Novelty.
- Inventive Level
- Industry Application
What is the Term of Protection of a Patent?
In Guatemala the Patent is granted for a period of twenty (20) years, counted from the date of submission of the patent application. [2]
Said period will be applicable as long as the maintenance fee is paid annually, failing which the Patent will expire.
Deadline to obtain a Patent in Guatemala
The average time in Guatemala to obtain the Registration of a Patent is up to 3 years, therefore, as it is a long, complex process that contains a large amount of technical information about the invention, the protection of a few Patents is requested annually before the Industrial Property Office in the country.
According to statistical data from the World Intellectual Property Office (WIPO), between 2020 and 2022, only 45 invention patents have been requested in Guatemala, divided by percentage into the areas of Information Technology, Medical technology, Furniture and Games[3]:
What are Pharmaceutical Patents?
Pharmaceutical Patents or Medicine Patents are a set of rights granted by the State to the inventor of a new product or pharmaceutical technology to exploit the patented invention, for a certain period of time, preventing others from manufacturing, selling or using it without the consent of the State. headline.
Within the pharmaceutical sector, two types of patents are considered:
- Product Patent: Which protect the medicine itself, limiting its use for commercial purposes by third parties, and
- Procedure Patent: These protect the procedure with which the medicine is made. In these cases, other companies may obtain the same drug, but as long as they do so through a procedure different from the patented one.[4].
In this line of ideas, it can be noted that pharmaceutical inventions can be subject to protection through Patents, as long as it is a product or procedure, in all fields of technology, and that such inventions meet the requirements of patentability, that is, that they are new, have an inventive activity and have industrial application.
Operation in Guatemala
As we noted at the beginning, in Guatemala, the protection of Invention Patents is regulated through the Industrial Property Law, Decree Law 57-2000. However, there are also various regulations that protect it, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), signed in 1994, and the Trade Cooperation Treaty. Patents, Guatemala being part of the latter since 2006.
For this reason, the competent entity for the protection of a Pharmaceutical Patent or other invention in the country is the Intellectual Property Registry, through the Patent Department, a department of the Ministry of Economy, and it is responsible for legally protecting inventions and creations through the delivery of a Patent Certificate, which grants the inventor exclusive protection in the Republic of Guatemala for a certain period of twenty (20) years.
Likewise, in 2020, the Ministry of Public Health and Social Assistance issued Technical Standard 55-2020, version 2, called Formation of the Database of Invention Patents Covering Products Objects of Intellectual Protection, with the objective that the Department of Regulation and Control of Pharmaceutical and Related Products has a database of patents in force in the country, which covers pharmaceutical products or their approved use, which is constituted with the information provided by the owners of the invention patents or their representatives. legal in the country.
The holder of the Pharmaceutical Patent must provide the Department of Pharmaceutical and Related Products, of the Ministry of Health, the following information:
- Certificate of registration of the patent in the Intellectual Property Registry of Guatemala, extended for a period of no more than thirty calendar days from the date of presentation.
- Identification of the molecule, product or approved use.
- International common denomination DCI.
- Identification of the Brand under which the approved product or products are marketed or will be marketed, if any, and those corresponding to health registration numbers, if any.
- Full name of the patent owner.
- Name of the Legal Representative or his agent in Guatemala.
- Indicate a place to receive summonses, notifications in the country and particular observations that are relevant to add.
Pursuant to Technical Standard 55-2020, version 2, the Department of Regulation and Control of Pharmaceutical and Related Products, of the Ministry of Public Health and Social Assistance, maintains to date a List of Pharmaceutical Products with Current Patents, which is updated. constantly, with the last modification being on November 24, 2023. This database can be consulted at the following link: https://medicamentos.mspas.gob.gt/index.php/consultas/productos-con-patente-vigente
In summary, patenting offers great competitive advantages to companies, ensuring them a position in the market. The Patent empowers its owner to decide whether the invention can be used by third parties and, if so, in what way.
[1] https://www.wipo.int/patents/es/faq_patents.html#:~:text=Una%20patente%20es%20un%20derecho,soluci%C3%B3n%20t%C3%A9cnica%20a%20un%20problema.
[2] https://portal.rpi.gob.gt/patentes/
[3] https://www.wipo.int/edocs/statistics-country-profile/es/gt.pdf