Patents – requirement
Patents | Portuguese Industrial Property Code
Patents – A patent constitutes a title that confers its owner exclusive right, involving an invention, as an intellectual operation from which results something new.
There are four requirements that the law establishes cumulatively for the granting of a patent:
- it has to be an invention;
- said invention has to be new;
- it has to imply inventive activity;
- it has to be prone to industrial application (article no. 55 of the Portuguese Industrial Property Code).
It’s not only the invention of new products that can be patented, but also the creation or the making of new means or processed, based on previous inventions, to obtain a merchantable product or a certain industrial outcome.
Unless otherwise provided for by exceptions in the Portuguese Industrial Property Code, the patent is granted to the one who presents first regularly the request with the enforceable elements.
The person who has been presenting regularly the patent request in any of the countries in EU or WTO or in any intergovernmental body with the authority to grant rights that have effects in Portugal, enjoys the priority right, as his/her successor, to present the request in Portugal.
The right to the patent belong to the inventor or his/her successors by any title.
The patent lasts 20 years counted from the day of the respective request.
The rights emerging from patents can be transmitted, total or partially, free of charge or costly.
The patents are total or partially void:
- if its object is susceptible to protection;
- if, in the respective grant, there was procedure infringements or necessary formalities for the grant of the right;
- if public policy rules are violated.
Invalidity is invokable at all times by any interested party.
The following are not patentable:
- Findings such as scientific theories and mathematical methods;
- Materials or substances already existent in nature and nuclear materials;
- Aesthetic creations;
- Projects, principles and methods of the exercise of intellectual activities in gambling or in the domain of economical activities, as well as computer programmes, just as, without any contribution;
- Presentation of information,
Inventions whose commercial exploitation is against the law, public rules, public health and good practices.
www.fa-legalonline.com | Patents | Portuguese Industrial Property Code
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Civil liability under the New Civil Code of Romania
New Civil Code of Romania – Civil liability
The New Civil Code comprises a thorough regulation of civil liability. The notorious Articles 998-999 of the former 1864 Civil Code have been replaced by much more modern provisions adapted to nowadays society. The New Code makes a distinction between tort liability and contractual liability from the very beginning.
According to Article 1349 of the Civil Code on tort liability, every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to harm, by his actions or inactions, the rights or legitimate interests of another persons.
When he is endowed with reason and fails in this duty, he is liable for any injury he causes to another and is bound to make full reparation for the injury. In certain cases provided for by the law, a person is also bound to make reparation for injury caused to another by the act of another person, by the act of things or animals in his custody, and by the ruin of an immovable.
The liability for injury caused by reason of a defect in the product shall be provided for by special law.
In regulating personal liability (for own acts), Article 1357 of the Civil Code sets out that every person causing an injury to another by an illicit deliberate act is bound to make reparation for the injury. He is liable for the less serious fault.
For assessing the fault, the circumstances in which the injury has been caused, independent of the person causing the injury, and, as the case may be, the fact that the injury has been caused by a professional in operating a business, shall be taken into consideration.
One of the most significant amendments as compared to the former law can be found in Article 1365 which provides for that civil court is bound neither by the provisions of the Criminal Law nor by the final acquittal or by the decision to not pursue the criminal lawsuit in what concerns the existence of the injury or the guilt of the person causing the injury.
As for contractual liability, Article 1350 of the New Civil Code provides for that every person has a duty to honour his contractual undertakings. Where, without justification, he fails in this duty, he is liable for any injury he causes to other contracting party and is bound to make reparation for the injury.
Unless the law provides otherwise, neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.
The distinction between tort liability and contractual liability is welcomed taking into consideration that, in the absence of distinct regulations, the former Articles 998-999 gave rise to various conflicting interpretations from specialists.
www.fa-legalonline.com | Civil liability | New Civil Code