Patricia Hoet-Limbourg of Hoet Pelaez Castillo & Duque looks at the impact of the patent of improvent in Venezuela.
Experience has demonstrated that national creativity can contribute in a significant way to the technological progress of a nation. This contribution is much more effective if creations are accompanied by suitable legal protection for inventors, innovators and those who have invested in the development of an invention or innovation, preventing their products or processes from being illegally copied by their competitors. Legal protection guarantees not only a greater market share but also stronger returns on investment and an increased value of the enterprise owing to patent portfolios.
National inventiveness is fundamental to the technological and economic self-sufficiency of a nation. It is therefore important to create valuation mechanisms for inventive talents that can stimulate the application of new types of technological innovation created, giving equal consideration to inventions of simple products for daily use and inventions applying complex technology in the industrial sector. In this regard, industrial property systems are one key way of promoting inventiveness and innovation, since patents and utility models provide a double incentive for their owners. There is both an economic incentive from the profits yielded, and a moral incentive arising from the social recognition they receive for their contribution to society.
Protection of inventions in Venezuela
In accordance with the Industrial Property Law currently in force in Venezuela, technological creations are protected in the following ways: patent of invention, patent of improvement, revalidation patent, introduction patent, model patent and industrial design. The Industrial Property Law in Venezuela does not contemplate protecting inventions using the utility model. The patent of improvement fills this gap. The basic difference between a patent of invention and patent of improvement is that the latter protects an invention with a lower inventiveness level (namely, they are of a lesser technological achievement), such as those based upon improvements made to existing products or processes, rather than novel inventions. A patent of improvement in Venezuela is valid for five to 10 years according to the owner’s will.
As a legal instrument within the Venezuelan industrial property system, the patent of improvement helps to encourage the development of new technological creations along with the advancement of domestic technological progress, allowing the application of the appropriate protection to small inventions. Specifically, the protection is aimed at those technical creations that do not fully qualify for an invention patent but require some sort of protection, due to their contribution to the technological advancement of the country. Recent statistics have shown that patents of improvements account for 1.42 per cent of the total yearly patent applications filed in Venezuela. From this percentage, 56.67 per cent pertain to domestic applicants, and 43.33 per cent belong to foreign applicants. Of the local applicants, most are private inventors, with very few applicants related to small to medium-sized businesses. Foreign applicants mainly come from Latin American countries (namely, Brazil, Mexico and Colombia).
The inventions that could be considered to a patent of improvement include: machines; tools; equipment for industrial, medical, technical or scientific use; machine parts or elements; mechanisms; apparatus; procedures for the preparation of material for industrial use or objects for industrial or commercial use; procedures for the preparation of chemical products; methods applied for the extraction and separation of natural substances; and, generally, any alteration, enhancement or modification applied to already known inventions.
Inventions that may not be subject to a patent of improvement include: drinks and food products, medicines of all kinds; medicinal and pharmaceutical preparations; chemical preparations, reactions and combinations; financial, speculative, commercial or advertising plans, systems or combinations or simple supervision and control; and the simple use or exploitation of natural forces or substances (even if they are not of recent discovery). Other inventions that do not qualify for a patent of improvement include: the new use of products, objects, substances or elements already known or employed for certain purposes, plus simple changes or variations in the dimension, shape or material of which they are made; operation methods or manufacturing secrets; inventions that are merely theoretical or speculative and whose practicality and industrial application has been impossible to demonstrate; inventions that conflict with local laws, health, public order, morals and good customs or national security; the juxtaposition of elements already patented or circumscribed in a public domain (unless these elements are joined in a way that they cannot function as independent entities, or else they would lose their characteristic function); and inventions that are known nationwide due to their publication in printed works or by other means, and those in the public domain as a result of their execution, sale or advertising either inside or outside of the country (before filing the application of the patent).
The relationship between patents of improvement and industrial models and designs
Patents of improvement and industrial models and designs are classified within an intermediate range between patents of invention and copyright. Industrial models and designs are aimed at protecting all new and original shapes given to a two-dimensional or three-dimensional product, article or object. In this particular case, the protected creativity arises from the aesthetic appearance of the product. A patent of improvement is more likely to be a version of the invention patent, whereas, industrial models and designs are more closely related to copyright issues. There are significant differences between the two legal instruments: while inventions protected by a patent of improvement are focused towards a practical function, the invention protected by classification as an industrial model or design has a purely aesthetic objective.
All in all, the patent of improvement (as a legal instrument within the Venezuelan industrial property system) contributes to technological progress at a national level by providing appropriate protection to small inventions, which are created mostly in less developed industrial sectors. All scientific or technological policies oriented at serving the best interests of the country should consider, therefore, the patent of improvement as a key alternative for the protection of lower level inventions.