In brief: patent prosecution in El Salvador

Scope and ownership of patents

Can a patent be obtained to cover any type of invention, including software, business methods and medical procedures?

The law defines an invention as an idea applicable in practice to the solution of a specific technical problem. An invention may relate to a product or a process. Business methods as such are not considered to be eligible patent subject matter. Medical procedures consisting of methods of surgical, therapeutic or diagnostic treatment, applicable to humans or animals are also excluded, except for products intended to implement any of said methods. Software is not explicitly excluded subject matter; nonetheless, it must reflect an idea applicable in practice to the solution of a specific technical problem defined by prior art.

Who owns the patent on an invention made by a company employee, an independent contractor, multiple inventors or a joint venture? How is patent ownership officially recorded and transferred?

Inventions may be held both by individuals and by corporate entities. The ownership of inventions made by a company employee, independent contractor, multiple inventors or a joint venture varies on a case-by-case basis, depending on the circumstances surrounding the inventors and the creation of the invention. For work for hire or performance of a contract, the general rule is that the creation of an invention belongs to the employee or the contractor.

Patent office proceedings

How long does it typically take, and how much does it typically cost, to obtain a patent?

The average time for obtaining a patent that meets all the requirements is two years from the submission of the application, provided that the required documentation is submitted at the time of the filing.

The typical cost of obtaining a patent is US$2,000 to $3,000.

Are there any procedures to expedite patent prosecution?

There is currently no expedited patent prosecution available.

What must be disclosed or described about the invention in a patent application? Are there any particular guidelines that should be followed or pitfalls to avoid in deciding what to include in the application?

The description must disclose and describe the invention in a sufficiently clear and complete manner in order for the examiner to be able to evaluate it, and in such a way that a person skilled in the art can execute it without excessive experimentation. The description must also contain the information regarding the closest prior art that may be considered useful for understanding and examining the invention, as well as references to documents or publications relating to said technology. The description of the invention should be disclosed in terms that allow the understanding of the technical problem and the specific solution provided by the invention; it must also expose the advantages thereof with respect to the closest prior art, including the best way known by the applicant to execute or carry out the invention by any other means.

Must an inventor disclose prior art to the patent office examiner?

The closest prior art must be disclosed in the description of the invention; nonetheless, it is not a burden imposed on the inventor per se.

May a patent applicant file one or more later applications to pursue additional claims to an invention disclosed in its earlier filed application? If so, what are the applicable requirements or limitations?

The pursuit of additional claims is allowed by filing of divisional applications of the parent invention. Additional claims are allowed provided that they meet with all the patentability requirements, as long as the additional claims do not exceed the disclosure contained in the original application.

Is it possible to appeal an adverse decision by the patent office in a court of law?

These types of proceedings are not substantiated by the Intellectual Property Registry; they are filed before a civil and commercial or a criminal court.

Does the patent office provide any mechanism for opposing the grant of a patent?

Yes, in accordance with article 149 of the Industrial Property Law. The procedure contemplates a phase of publication of the application, after which the phase to receive comments from third parties is opened for a period of 60 days.

These observations can be contested by the applicant and everything as a whole is assessed in the ‘substantive examination’ phase.

Does the patent office provide any mechanism for resolving priority disputes between different applicants for the same invention? What factors determine who has priority?

This kind of dispute can only be taken to a judge pursuant to article 168 of the Industrial Property Law.

These cases are not common, but the factor that determines the priority in this type of actions is the identity of the title holder of the right, which can be demonstrated by showing that the patent was granted in other countries: prior in tempore, potior in iure.

Does the patent office provide procedures for modifying, re-examining or revoking a patent? May a court amend the patent claims during a lawsuit?

The patent office provides procedures for modifying a patent; however, any modification whose scope is not included in the disclosure of the initially filed application will imply the extinction of the patent. Depending on the case, when the grounds for nullity affect a claim or part of it, the nullity may be declared in the form of a limitation of the corresponding claim, by a declaratory judgment.

How is the duration of patent protection determined?

In the case of Salvadorean national applications, if granted, the 20-year term shall be calculated from the date of the national application; in the case of priority applications, the term starts from the oldest claimed priority date.

Law stated date

Give the date on which the information above is accurate.

March 2021.