Patents of Invention

– Ley de Propiedad Intelectual (Intellectual Property Law). Enactment date: July 19, 1993. Last amendment approved on March 17, 2017.
– Important patent provisions (in respect to infringement) are found in the Criminal Code and also in the Medicines Law.

Membership in International Conventions

– Convention Establishing the World Intellectual Property Organization (WIPO), since September 18, 1979.
– Paris Convention for the Protection of Industrial Property, Stockholm Act, since February 19, 1994.
– WTO’s TRIPS Agreement, since May 7, 1995.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), party since May 31, 1996.
– Patent Cooperation Treaty (PCT), since August 17, 2006.
– Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, since August 17, 2006.

Filing

Applicant: inventor or his assignee, whether an individual, a firm, company or national entity. Applicant (the individual) is presumed creator of the idea, proof to the contrary rests on a third party’s shoulders. 

Foreigners and nationals not living in the country: must appoint a representative (resident attorney-at-law). 

Protection of foreigners: same protection as for nationals. 

Naming of inventor(s): compulsory. 

Novelty: when the invention does not exist in the state of art (except if disclosed by the inventor, its successors or in an act of abuse of trust a year before the national application or its priority was filed).

Exceptions to protection (unpatentable inventions): lack of novelty, inventive level or industrial utility.

Not patentable: discoveries, scientific theories and mathematical methods; plans, principles or economic methods of advertising or business, those referring to purely mental activities and those related to game matters; the methods of surgical, therapeutic or diagnostic treatment, applicable to the human or animal body; inventions whose publication or exploitation would be contrary to public or moral order. 

Kinds of protection: (1) patent of invention; (2) confirmation patent. 

Secret patents: not provided for. The law provides for industrial or commercial secrets.

Priorities: according to Paris Convention.

Territory covered: El Salvador.

Filing requirements for an application (to be sent to resident agent):
1. Legalized power and assignment mentioning the title of the invention executed both by assignee and inventor;
2. 2 copies of specification, claims, summary, figures and sequences (if applicable) in Spanish with or without drawings; no specific size or material.

Filing without requirements: late filing is possible for the POA and assignment document, translation into Spanish is possible.

Consular legalization: must be effected by the nearest El Salvador Consulate.

Electronic filing: available. 

Electronic signatures: are not accepted (only wet signatures).

PCT applications: time limit for entering national phase under both Chapters I and II: 30 months.

For a change of name or address:
1. Original document evidencing the change, duly certified by notary public and legalized by Apostille;
2. Original power of attorney in the new name/address, duly certified by notary public and legalized by Apostille.

Examination Procedure

Examination: as to novelty and merits by means of a contract enabling the Registrar to entrust the examination to technical Examiners.

Amendments of application: before publication: possible, if not affecting the individuality of applicant and/or the nature of the invention; after publication: only limiting protection of the patent, not adding new protector material; after granting: only eliminating claims.

Alterations: same as amendments. 

Process claims: registrable. 

Swiss style claims: limited acceptance. 

Prior user: he may oppose the granting of the patent to others on the grounds of lack of novelty, under evidence. Publication may also be disputed by the prior user, under certain conditions. 

Division: in accordance with Article 110 of the Patent Law, the applicant should divide his invention into two or more divisional applications in order to conform with a single inventive concept. Filing a voluntary divisional application is possible. 

Application kept secret: until published for observations purposes. 

Observations to application filed: possible during the sixty days following publication, to be filed at the Patent Office.

Reasons for observations: (1) not registrable; (2) prior publication; (3) lack of right to patent (i.e. when the applicant is not the actual inventor). 

Provisional registration: not possible. 

Correction: is the object of special procedure. 

Publication: publication of patent application for third parties observations purpose.

Dispute about novelty: by observations at the PTO.

Granting

Delivery of document: under normal circumstances, the registration certificate (in electronic format only) is issued after two to three years.

Beginning of protection: after date of filing, as confirmed by granting. 

Objections to applications may be contested to. 

Refusal of application: may be challenged through in-line Revision-Revocal Appeal. 

Duration – extension: twenty years from filing date. Extension possible only for delays in the registration due to unjustified causes on the PTO side. 

Annuities: the patent will be cancelled if an annual tax is not paid before the anniversary date of the filing date each year, with a six-month grace term. The first annuity is payable before the 3rd year of the application date. The first two years are exempt.

Marking of patented goods: not compulsory, but recommended registration number and date. 

Text of marking: “Patentado en El Salvador (here date) Número (here the registration number)”. 

Amendment of issued patents: possible only to correct Patent Office’s mistakes. 

Annulment: a patent is annulled upon the decision of the courts on the grounds of non-registrability, the disclosure of the invention is not sufficiently clear for a person technically knowledgeable to execute it or the claims are not grounded by the disclosure, if due to an amendment the patent contains claims that were not disclosed in the application originally filed.

Assignment: possible by means of a notarial assignment duly legalized. 

License for exploitation: drawn up before a Notary Public and recorded at the Patent Office.

Working: no working required. 

Compulsory license: provided for.

Restoration of invalidated patents: not possible.

Modification of Protection after Registration

Rights of prior user: protected through judicial annulment claim.

Opposition to granted patents: it is known here as a judicial abatement lawsuit.

Expropriation: not provided.

Infringement: use without the patentee’s authorization.

Penalties: civil, criminal and unfair competition action available.