28 de December de 2021 // Patricia Marques

Are we free to protect or commercialise?

Tempo de Leitura //

The way in which companies operate on the market is increasingly conditioned by globalisation, not only how they find new opportunities, partnerships, financing or even new markets, but also and chiefly how they keep up with the latest trends, as they must seek to differentiate themselves within these trends in order to attract the greatest number of consumers, who are more and more demanding and have more and more freedom of choice. These demands create an added challenge in the times that we are living in – customer loyalty.

This reality requires companies to be highly flexible and there is a constant need to offer innovation in the solutions that they present to the market, which means that it extremely important for them to know which sectors they can enter with their technologies and solutions and too dangerous to ignore these trade barriers. The costs that may be incurred with court proceedings can be disastrous for a business, even if it has no intention of usurping the technology or solution of a competitor. Also, a bad commercial strategy in a particular territory can ruin a business. Therefore, it is increasingly important to determine the territories where companies can protect their solutions or, if they do not wish to obtain exclusive rights, whether they can in fact commercialise and/or use them without infringing the rights of third parties. This is information that can be obtained from the documentation of a patent, whether a pending application or a granted patent, when it is published.

With regard to this aspect, it is important to mention that a patent application, when filed with the competent entity, will be published. This is justified by the fact that the “bargaining tool” implicit in these rights is that the State will grant a commercial monopoly to the owner, on the condition that he delivers a document (the patent) with the knowledge required to reproduce the technical solution implemented by the invention described in the patent document. The State is obliged to disclose the solution which others are excluded from during the term of validity of the right, so that when the right expires the public can reproduce this solution without any inventive effort.

As well as this fantastic contribution of a certain solution to the state of the art, the patent publication brings so much more. It provides information as to whether or not the right is valid, i.e. whether or not it has been granted and why, who its owner is (clarifying if it is a competitor or giving companies the opportunity to contact the owner with a view to possible negotiations or partnerships), or even who the inventors are, thereby making it possible to assess what type of teams are involved in the respective technologies. These publications also provide the date on which the solutions were developed and even for how long the use, manufacture or commercialisation thereof without due authorisation will remain prohibited.

No less importantly is the territory where these solutions are protected and their use is prohibited, as well as the opposite, i.e. where there is free access to the solutions and freedom to operate. Access to such knowledge makes it possible decide which markets to invest in and what challenges will be faced. All this information, if it is misinterpreted or wrongly used, may give rise to a strategy contrary to that which defends the interest of the business, meaning that it is essential that the necessary searches and subsequent analysis of the information thus obtained be carried out and followed up by IP specialists.

The opinions and views expressed on this Digital Platform are solely those of their authors. These opinions and views do not necessarily represent those of Pereira da Cruz e Associados – Sociedade de Advogados, R.L. or J. Pereira da Cruz, S.A., and their staff or any contributors to this Digital Platform.
They also do not consist of legal or technical advice, so we advise you to contact a lawyer and / or official industrial property agent if you have any questions or concerns regarding these matters.