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What is the Priority right?

In the late 19th century, coinciding with industrial development and the beginning of the globalisation process, European countries met to create international rules to regulate trade relations. This gave rise to what is known as the PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY, which establishes a series of general principles applicable to industrial property, such as Territoriality and Priority.

The principle of Territoriality is based on the non-existence of “worldwide” Industrial Property rights, i.e., each country is responsible for granting these rights in its own territory and will require what is set out in its legislation. One of the requirements in most countries is that of “novelty”.

This means that if, for example, a company registers a patent in Spain on 23rd October 2008 and then decides to go to the United States, this country could inform it that its patent application lacks novelty because there is another application in another country (Spain) covering the same subject.

Submitting an application for an Industrial Property right in a Convention (CUP) member country gives rise to a Priority Right. In practice, the priority right translates into the granting of a period of time during which, if a second identical application is submitted in a Paris Convention member country, it would be possible, for all intents and purposes, to recognise the submission date of the first application for both of them.

The period for exercising this right varies according to the type of Industrial Property:

- 12 months for Patents

- 6 months for Trademarks and Industrial Designs

This period is applied from the date of the initial application.

In the case cited above, the applicants would have until 23rd October 2009 to make an application in the United States or any other Paris Convention member country.

If this period expires and the patent application is made after 23rd October 2009, the priority right could be claimed and for practical purposes the patent application in the United States would not be new, even though it was submitted by the same holder.

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