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Patentability What are the criteria for patentability in your jurisdiction? In Ecuador a patent will be granted to all inventions, whether products or processes, in all fields of technology, if the invention:
- is new;
- involves an inventive level; and
- is susceptible to industrial application.
An invention is new when:
- it is not in the prior art (technical status);
- it has inventive level that is not obvious, or obviously derived from prior art, to a person skilled in the relevant technical field; and
- it is considered to have industrial application where its subject matter may be produced or used in any productive activity, including services.
What are the limits on patentability? In Ecuador the limits on patentability are:
- things that are not considered to be inventions according to Article 125 of the Intellectual Property Law; and
- exclusions on patentability according to Article 126 of the law.
Article 125 states that the following should not be considered inventions:
- scientific discoveries, principles, theories and mathematical methods;
- materials which already exist in nature;
- literary and artistic works or any other aesthetic creation;
- plans, rules and methods for the exercise of intellectual activities for games or economical and commercial activities, as well as computer programs or logical supports where they are not a part of an invention susceptible to industrial application; and
- methods of presenting information.
Article 126 states that the following should be expressly excluded from patentability:
- Inventions by which commercial exploitation must be prevented to protect public order or morality, including:
- the protection of life or health of persons and animals;
- the preservation of plant varieties; and
- the avoidance of serious damage to the environment or ecosystem.
The following are considered to be contrary to morality and are therefore not patentable:
- cloning processes for human beings;
- the human body and its genetic identity;
- the use of human embryos for industrial or commercial purposes;
- the procedures for the modification of the genetic identity of animals when they cause pain without obtaining any substantial medical benefit for human beings or animals;
- diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and
- plants and animal breeds, as well as essentially biologic processes for the production of plants or animals.
Are there restrictions on any other kinds of invention? There are no other kinds of restriction on any other inventions, other than those contained in Articles 125 and 126 of the Intellectual Property Law (detailed in the limits on patentability), in concordance with Articles 15 and 20 of the Andean Community Code, Decision 486.
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