Introduction
In the reality facing the current economy, where the achievement of efficiency and competitiveness is essential for the growth and development of our country, knowledge of the laws and doctrine related to Industrial Property is an important aspect to bear in mind. It counts for both legal professionals and citizens who in one way or another are related to this branch. To this responds, the application of legal regulations on inventions for the improvement of what is established in Decree-Law Number 68.
The improvement of socialism in Cuba in the current international context, which is strongly marked by neoliberal political competition, economic measures imposed by the North American government and its increasingly aggressive hegemony against our people, requires that Cuba implement and improve the legal rules that allow inventive activity to really constitute a creative work that positively affects technical scientific progress and the development of the national economy.
To face the situation described above, several decrees, agreements and resolutions have been implemented, the fundamental one being Decree-Law Number 68. Its knowledge and compliance constitutes a weapon of struggle that citizens in general are forced to use during development. of activities related to inventions and scientific discoveries, among others; it is also a way to improve the economy and ensure that inventive activity is perfected, continues to enjoy more and more the protection of the State and guarantees the improvement of the socialist system that we defend.
One of the best examples of how to use laws and science in order to defend the conquests of the Revolution is constituted by Cuba and the results obtained are recognized nationally and internationally.
In practice, it is found that both in theory and in law, there are various criteria about the main concepts established on Industrial Property, how inventive activities are regulated and legally protected. This epistemological and legislative diversity makes it difficult to understand Industrial Property as a legal institution.
Development
The historical evolution of the laws related to the patenting of inventions from the 18th century to 1969.
With about 180 years of existence of Industrial Property in Cuba, the OCPI (Cuban Office of Industrial Property), is located in one of the quadrants of the 18th century building, known as the Belén Convent.
The last decade of the 18th century was for Cuba the framework of growing progress in population, wealth, culture, as well as the first manifestations of our nationality.
Already in the first three decades of the nineteenth century, all the continental colonies of Spain had been liberated, leaving only two: Cuba and Puerto Rico, so the Spanish monarch decided to issue the Royal Decree of July 30, 1833, which made Extensive to these colonies and the Philippines, the provisions established in the Royal Decree of March 27, 1826, which stipulated the rules for the granting of invention privileges and introduction of improvements on the basis of the first Patent Law, promulgated in Spain in 1820, for which said Royal Decree constitutes the first legal instrument related to Industrial Property in Cuba.
This legal norm was followed in succession by a long list of royal orders and royal decrees that established provisions aimed at specifying the application of the Patent Law of 1820, the fundamental ones being the Royal Order of August 18, 1842, in which the provisions were established to allow the review before the courts, the privileges granted to holders who had presented false information; the Royal Order of January 11, 1849, which specified the form and conditions of the verification of the implementation of inventions, aspects that were not well defined in the Royal Decree of 1826.
The Royal Order of July 16, 1849, provided that the requests for the annulment of conceived privileges, for reasons of lack of novelty, were the competence of the ordinary courts and on July 30, 1877, another Royal Decree transferred the presentation of the applications of privilege that were made before the Mayor of the province to the Ministry of Development.
The oldest document that is preserved in our Office to protect an invention in Cuba dates from March 22, 1867. It is a Certificate of Privilege issued by the Secretariat of Agriculture, Commerce and Labor in favor of Mr. Alejo Sonjol, by "Improvements in flying carriages."
The Secretary of Customs and Insular Business of the United States Department of War ordered, through the Circular of November 12, 1899, that all Industrial Property rights granted in the United States be protected in Cuba in accordance with the laws of that country.
Military Order No. 216 of May 26, 1900 established that the owners of patents Registered in Spain had to present in Cuba, certificates of registration and validity in Spain so that they could be protected in our country. Likewise, it was definitively established that United States patents would be valid in Cuba.
Both the Circular of November 12, 1899, and Military Order No. 216 are reliable examples of the change of metropolis that had taken place and of how the United States was paving the way for an ever greater penetration in this field as well.
The year 1904 was a milestone for Cuba regarding Industrial Property at the international level, since our adherence to the Paris Convention for the Protection of Industrial Property (of 1891) became effective, which linked us with the practice international in this matter.
With the promulgation of Decree-Law No. 805 of April 4, 1936, the first indigenous legal instrument in this branch was born. This norm was followed by other decrees, resolutions and provisions, promulgating its Regulations through Decree-Law number 209, of February 7, 1956.
The Triumph of the Cuban Revolution in 1959 brought with it substantial modifications in the legislation on Industrial Property in Cuba, due to the radical change in the economic, political and social system that it meant. Successively, laws were enacted that in one way or another modified or supplemented Decree-Law 805, such as: Law No. 618 of October 27, 1959, which established a regime of compulsory licenses for exploitation of patents Registered in the Industrial Property Directorate of the Ministry of Commerce, which gave the young Revolutionary State an effective weapon against the abuses and monopoly powers of the patent owners.
Likewise, Law No. 914 of January 4, 1960, introduces substantial modifications to Decree-Law No. 805 because the State assumes the economic activities that private entities have been carrying out. This is followed by Law No. 1088 of December 31, 1962, Law No. 1115 of June 26, 1963, Law 1217 of October 8, 1968 and Resolution No. 69-45 of June 30, 1969.
Up to this point, the historical evolution of the laws related to the patenting of inventions from the 18th century to 1969 has been briefly exposed. Next, we describe its current state.
The current state of the invention patent and its implementation.
In order to specify the current status of the invention patent and determine the relevant aspects of its implementation in Cuba, it is necessary to clarify that Decree-Law No. 68 was issued on May 14, 1983, which is currently in force- denominated "Of Inventions, Scientific Discoveries, Industrial Models, Trademarks and Denominations of Origin", adjusted to the socialist relations of production existing in the country, which was complemented by Resolution number 999 of June 13, 1983.
At present, the adoption by Cuba of the Convention that establishes the World Trade Organization set new guidelines for the country by forcing it to carry out a review of the current legislation on the matter, its first result being the promulgation of Decree-Law number 160, of 9 June 1995, "To facilitate the filing and modification of patent applications for pharmaceutical and agricultural chemical products."
With this same purpose, legislative studies have been carried out in order to temper the rules relating to Industrial Property to the new guidelines of the economy and international practice - emphasizing the content related to patents for inventions -, resulting in the elaboration of five projects of legal bodies, of which one related to Trademarks and Other Distinctive Signs was approved on December 24, 1999, as Decree-Law number 203, which regulates the reciprocal legal relationships that are established in the sphere of the application, processing, concession, administration, observance of Industrial Property rights over trademarks and other distinctive signs, and Decree-Law number 228 of 2002, published in the Official Gazette of the Republic on February 22 of that year,which regulates the protection of Geographical Indications (Denominations of Origin and Indications of Origin) as an object of Industrial Property law.
From the foregoing, it is reaffirmed that the implementation of the laws on inventions in Cuba has as a relevant aspect or main characteristic, the existence of multiple resolutions, decrees and agreements, the fundamental being Decree-Law Number 68, whose knowledge and compliance it can be perfected by means of theoretical work that improves its understanding and fosters greater coherence in the interpretations of the Law.
The application of the provisions on inventions in Decree-Law 68.
Of inventions, scientific discoveries, industrial models, brands and appellations of origin.
A clarification of the main categories used in the research is made through the theoretical-doctrinal and legislative treatment of inventions as part of Industrial Property, characterization of the application of what is established in the regulations on inventions and their legal regulation in Cuba.
In order to understand this work, it was necessary to specify various aspects of Industrial Property, among which are the concepts of invention and inventive capacity, the requirements of an invention, the purpose of patent law, international laws and conventions, what is can it be patented, who has the right to the patent, exclusive right of exploitation, how inventions are protected in Cuba, the patent as an object of property and patent nullity and expiration
Through the analysis of various definitions of inventions, it was found that: “An invention is a rule that indicates the way in which it is necessary to operate with certain materials or forces of nature to achieve a concrete and useful result, that is,, so that it serves to satisfy some human need. " This definition is assumed because it relates the concept of invention to the creation of something new that solves a human need, which conforms to what is established in Cuban legislation on this subject.
When we refer to an invention, we speak of the creation of an object, product, theory or process that always involves the alteration of certain matter or materials. For an invention to exist, inventive capacity must be present, it is almost exclusively human and except in a few cases, in nature only man has developed the possibility of taking elements from it to transform them into compounds of greater complexity and usefulness.
When speaking of an invention, reference is being made to two possible ways of composing a new element: from pre-existing elements or products (which are generally improved or altered) or from scratch as a result of a perhaps unexpected and surprising development.. The objective of the inventions can therefore be clear, but it can also be established a posteriori if the creation in question is the consequence of processes not previously thought of. However, the invention will always imply departing from the norm and the pre-established lanes, whether we are talking about inventions conceived or not.
The invention is considered to involve an inventive step if it does not result from the state of the art in an obvious way for an expert in the field, therefore it requires requirements that are explained in more detail below:
In the present work, the following should be understood as requirements of an invention: Novelty, industrial applicability and inventive step, two of them - novelty and inventive step - are comparative of patentability, since to determine if they exist or not, it is essential to establish a comparison between the invention and what was known at that time, in the case of novelty; This is not the case in the inventive step requirement, since the latter is judged by comparing the state of the art with the ability to invent. In figure 1 it can be seen how despite the fact that the novelty and inventive step requirements are comparative, in each one of them different aspects are compared that contribute to better judge the invention to which they refer.
Figure 1 Requirements of an invention:
Requirements of an invention
The analysis of various documents related to patent law made it possible to determine that the majority of both national and international authors agree that its purpose "is to promote technological progress within a free competition market." To achieve this end, what is done is to establish a kind of pact between the inventor and the State. The inventor describes the invention in such a way that any expert in the field can put it into practice and submits said description to the corresponding administrative office, so that it is known to third parties interested in it. In return, the State attributes to the inventor the exclusive right to produce and commercialize the object of his invention for a limited time, in this way both achieve their objective:the inventor gets to have an exclusive right of exploitation, otherwise anyone could copy his invention and exploit it, and the State obtains the knowledge and description of the invention which allows him to make it public.
The existence of national and international laws and conventions related to the patent of inventions could be determined through the bibliographic search, among which are the Paris Union Convention for the Protection of Industrial Property, this being the most important, since it consists in that "not only does it delimit its objective scope of application but also offers a descriptive notion of Industrial Property that is incorporated into the internal law of all member states of the Union", in Cuba, what is related to inventions is fundamentally regulated in Decree-Law 68 On Inventions, Scientific Discoveries, Industrial Models, Trademarks and Designations of Origin.
Through an analysis we were able to reach the conclusion that: Only industrial inventions can be patented. Thus, it can be said that the object for which a patent is applied for must present the aforementioned patentability requirements.
To deal with the issue of who has the right to the patent, an analysis of the legislation was carried out and it was determined that this is owned by "the inventor and his successors in title."
The exclusive right of exploitation is a basically negative content right. It means that the owner has the right to prevent third parties from any act of commercial or industrial exploitation of the patented invention. There is a relationship between the exclusive right and the need for the protection of patents for inventions, because for their protection, it is necessary to specify that inventions are protected “… through the Certificate of Author of Invention and the Certificate of Patent of Invention.", regulated in article 24 of Decree-Law 68 in relation to articles 58 and 74 of said Decree Law.
The patent as an object of property in this work is assumed as follows:
“Once granted, and even the patent application, they constitute goods with an economic value, which are normally integrated within the business patrimony. And like any other property it is possible to dispose of them. "
The fundamental means of disposing of patents consist of: the transfer of the patent or transfer of ownership over it and the granting of licenses. These do not transfer the ownership of the patent, but rather authorize the licensee to exploit the invention within the limits established in the contract, so that the ownership of the patent continues to belong to the same person, that is, to the licensor.
Regarding the invalidity and expiration of patents, we can state that the same are null or expired due to lack of patentability requirements, lack of a sufficient and complete description for an expert in the field to execute it, the fact that the object of the content of the patent application is more restricted than the object on which the patent has been granted, or when the patent owner does not have the right to obtain it because he is not the author or the successor in title.
Nullity can be partial by annulling one or more claims that are affected by the causes of invalidity, but leaving the remaining ones subsisting.
Expiry does not operate retroactively, unlike nullity. In this it is considered that the patent was validly granted and that it has been in effect until the moment in which the facts or omissions that gave rise to the expiration occurred. The expiration period of this is granted by the owner's resignation, due to non-payment of the annuities and due to lack of exploitation in the two years following the granting of the first compulsory license when the invention is not exploited.
By studying laws, documents related to the subject, personal communications with specialists and searches carried out on the INTERNET, we have been able to verify that both in theory and in laws, there are different criteria about the main concepts established on Industrial Property, how it is inventive activities are regulated and legally protected. This epistemological and legislative diversity makes it difficult to understand Industrial Property as a legal institution.
Inventions, as the first aspect to be dealt with in Decree Law 68, have several shortcomings in their content, which makes their understanding and application more complex for all people, limiting the positive impact that it should cause on the scientific-technical progress of the economy. It also prevents unifying the main concepts and definitions of Industrial Property, making it difficult to make effective decisions related to the subject.
Conclusions
The logical historical analysis facilitated the determination of the historical evolution of invention patents and their legal regulation in Cuba, determining a period that extends from the 18th century to 1969 - about 180 years - in all these years it has existed as a common denominator, the existence of diversity of concepts and multiple laws that complicate studies on the subject.
The theoretical-doctrinal and legislative study of inventions and their legal regulation in Cuba made it possible to identify a group of concepts and laws whose knowledge is essential to understand the subject and its effects on technological progress and the economy.
The improvement of the legislation on patenting of inventions, as well as increasing the awareness of citizens related to this issue, is essential for the patenting of inventions to achieve its fundamental purpose in practice.
Bibliography
- Bercovitz, Alberto. "Industrial Property in Commerce and Industry". Madrid Spain. 1993 Dr. Moreno Cruz Marta, Dra. Horta Herrera Emilia. Selection of Industrial Property readings. Volume I. Editorial Félix Varela. Havana 2005 Dr. Moreno Cruz Marta, Dra. Horta Herrera Emilia. Selection of Industrial Property readings. Volume II. Editorial Félix Varela. Havana 2005. Fraga, Ariel. Diploma Work: «The Criminal Protection of Intellectual Property Rights». University of Havana. Law School. 1995. Medina and Sobrado, Pedro G. «Legal Nature of Industrial Property rights for the protection of intellectuals». Havana. 1949.
Legal texts
- Agreement on Trade-Related Aspects of Intellectual Property Rights. 1994. Paris Convention for the Protection of Industrial Property of March 20, 1883. Decree-Law No. 68 of "Inventions, Scientific Discoveries, Industrial Models, Trademarks and Designations of Origin" of May 14, 1983.
Websites
Footnotes:
- 1. On inventions, scientific discoveries, industrial models, trademarks and designations of origin. 2. Marta M. and Emilia H. Selection of Industrial Property Readings Volume 1. P.83. Havana. 2007.3. Marta M. and Emilia H. Selection of Industrial Property Readings Volume 1. p.7 8. Havana. 2007. Marta M. and Emilia H. Selection of Industrial Property Readings Volume 1. p.59. Havana. 2007. Marta M. and Emilia H. Selection of Industrial Property Readings Volume 1. p.82. Havana. 2007.6. Marta M. and Emilia H. Selection of Industrial Property Readings Volume 1. p.87. Havana. 2007.7. Marta M. and Emilia H. Selection of Industrial Property Readings Volume2. p.343. Havana. 2007 Article 24 The State protects the rights of the authors of inventions,both through the Certificate of Author of Invention and the Certificate of Author of Invention of Addition, as well as through the Certificate of Patent of Invention and the Certificate of Patent of Invention of Addition. Article 58 The Invention Patent Certificate accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to conventional priority of the application and the exclusive right of the owner over it. Article 74 The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, paternity over the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State on the exploitation of the invention.as by means of the Invention Patent Certificate and the Addition Invention Patent Certificate. Article 58 The Invention Patent Certificate accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to conventional priority of the application and the exclusive right of the owner over it. Article 74 The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, paternity over the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State over the exploitation of the invention.as by means of the Invention Patent Certificate and the Addition Invention Patent Certificate. Article 58 The Invention Patent Certificate accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to conventional priority of the application and the exclusive right of the owner over it. Article 74 The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, paternity over the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State over the exploitation of the invention.The Invention Patent Certificate accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to conventional priority of the application and the exclusive right of the owner over it. Article 74 The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, paternity over the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State over the exploitation of the invention.The Invention Patent Certificate accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to conventional priority of the application and the exclusive right of the owner over it. Article 74 The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, paternity over the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State on the exploitation of the invention.The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State on the exploitation of the invention.The Invention Author Certificate is granted in the name of the author or co-authors and accredits the recognition of the technical solution as an invention, the paternity of the invention, the right to remuneration, priority, conventional priority and the exclusive right of the State on the exploitation of the invention.
