On November 14, 2014, Division 3 of the National Court of Appeals in Civil and Commercial Matters confirmed the district court’s sentence rejecting the plaintiff’s request that notice of a patent invalidity action be served in the legal domicile declared by said defendant in the Argentine Patent Office (APO) for patent prosecution purposes, instead of defendant’s real domicile in California, U.S.A., as prescribed by sections 339 and 340 of the Code of Civil Procedure.
In so deciding, the Court first pointed out that since Argentine patent law does not provide that the legal domicile declared in the APO for prosecution purposes is valid to notify patent invalidity actions (as is specifically regulated by the Argentine trademark law for trademark issues), plaintiff´s request was ungrounded and inconsistent with the principle of due process regulated by the National Constitution and international agreements.
Furthermore, the Court added that forced extrapolations of legal provisions that regulate different facts are not appropriate when serving notice of the complaint is at stake, since it is the procedural step on which depend the effective acknowledge of the existence, object and subject of a legal proceeding.
Following the above mentioned arguments, Division 3 of the Federal Courts of Appeals rejected the plaintiff’s arguments based on the following legal provisions: Section 122 of Corporations Law (which regulates the summons of corporations located abroad), Section 1 of Patent Law´s Regulatory Decree (as it gather the national treatment principle), Section 3 of Patent Law (as it regulates the obligation of any patent applicant domiciled abroad to constitute a legal domicile in Argentina) and Section 69 of the Patent Law (also referred to the obligation to constitute a legal domicile for patent prosecution purposes).
This decision follows others which held that notice of a complaint must be served in the defendant’s real domicile, even if located abroad.