The Grace Period Exception

Published byBarreda Moller

In general, the public disclosure of an invention made before the filing date of the corresponding patent application is considered as a part of the prior art. However, some countries, including Peru, have established an exception to this rule known as the Grace Period Exception.

In general terms, according to this exception, the public disclosure of an invention must be not taken into account by the Patent Office when performing the patent examination, if such disclosure was made under certain circumstances and if the patent application was filed within an established term from the disclosure.

Nowadays, there is not a global harmonization of standards of the Grace Period Exception. For example, in some countries, this exception only applies to disclosures made by inventors at international exhibitions but not to those made by third parties. Furthermore, the term for filing a patent application varies between six to twelve months after the public disclosure of the invention.

Under this scenery, companies are forced to invest for keeping their inventions in secret in order to avoid that unauthorized disclosures affect the patentability of their inventions.

In the case of Peru, Patent Law provides a twelve-month grace period. Furthermore, applicants can invoke this grace period in a large number of circumstances compared to other countries. For example, the exception covers the public disclosure made by the inventor or his/her successor in title, including the applicant. Furthermore, this exception includes the disclosure made by a third party who has obtained the information directly or indirectly from the inventor or his/her successor in title. Therefore, Patent Law allows companies to protect their inventions from inadvertent disclosures made by the inventors or from the stealing of their information.