2. Ownership of Patents

Right to a Patent

General Rule: The right to a patent belongs to the inventor, his heirs, or assigns. When two or more persons have jointly made an invention, the right to a patent shall belong to them jointly [Sec. 28, RA 8293]¹.

The employee has the right to the patent if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities, and materials of the employer [Sec. 30.2(a), RA 8293]².

Exceptions: Inventions created pursuant to employment or a commissioned work

• The person who commissions the work shall own the patent [Sec. 30.1, RA 8293]³.
• The employer has the right to the patent if the invention is the result of the performance of the employee’s regularly assigned duties [Sec. 30.2(b), RA 8293]⁴.

Exception to the exception: There is an agreement, express or implied, to the contrary.

First-to-File Rule

RA 8293⁵ changed the basis of ownership of a patent from First-to-Invent under RA 165⁶ to First-to-File.

If two or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date [Sec. 29, RA 8293]⁷

Filing Date

The filing date of a patent application shall be the date of receipt by the Office of at least the following elements:

• An express or implicit indication that a Philippine patent is sought;
• Information identifying the applicant; and
• Description of the invention and one (1) or more claims in Filipino or English [Sec. 40.1, RA 8293]⁸.

Invention created pursuant to a commission/in the course of employment

The person who commissions the work shall own the patent, unless otherwise provided in the contract [Sec. 30.1, RA 8293]⁹.

In case the employee made the invention in the course of his employment contract, the patent shall belong to:

• The employee, if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities, and materials of the employer.
• The employer, if the invention is the result of the performance of his regularly- assigned duties, unless there is an agreement, express or implied, to the contrary [Sec. 30.2, RA 8293]¹⁰.

Right of Priority

An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered filed as of the date of filing the foreign application: Provided, That:

• The local application expressly claims priority;
• It is filed within 12 months from the date the earliest foreign application was filed; and
• A certified copy of the foreign application together with an English translation is filed within 6 months from the date of filing in the Philippines [Sec. 31, RA 8293]¹¹.