Intellectual rights are characterised by the rule of territoriality. This rule means that a patent, plant variety right, trademark or design is only valid in the country in which protection was obtained. Concretely, this means registering these rights in the countries in which you seek to use them and prohibit third parties from using your invention, plant variety right, trademark or design. However, you must also make sure that you are indeed the first person to request this protection in these countries and that your trademark, invention or design actually meets the conditions for protection in these countries, such as novelty for inventions, availability for trademarks and novelty for designs. Be aware of the fact that, in theory, you are supposed to file your requests with the different national offices on the same date and time, which is not very realistic.
To get around this problem, most countries in the world recognize a priority right, in accordance with the Convention of Paris.
Thanks to this right, whenever you file a first request in a country which is a member of the Convention of Paris, you have a set period of time during which you may also request protection for the same trademark, invention or design in another Convention member country, without losing your priority right.
The duration of the priority right is six months for trademarks and designs and twelve months for patents and plant variety rights.
During this time period of six or twelve months after the date of the first request for a patent, trademark or design, any requests which may be filed later on in member states of the Paris Union shall not be rejected due to any events occurring during this period. Neither the filing of patent requests for identical inventions by a third party nor the divulgation or implementation of an invention nor the sale of design copies nor the use of a trademark which may occur during this period of priority right will be considered when making a decision on the required conditions (novelty, availability, etc.) for a request for a patent, trademark or design filed in country A during the 6 or 12 months following the first filing carried out in country B, if these two countries are members of the Paris Union.
Here is an example which may help you better understand the priority right mechanism. Nine months after filing a first patent request in Belgium, you decide to also request a patent in France or Japan. You must meet the novelty conditions in these countries for the date on which you filed your first request in Belgium and not for the date of the request in France or Japan. Any divulgations of your invention during this period of 9 months will not invalidate your patent request.
Similarly, any trademark request filed for an identical sign or use made by a third party in one country during the six months following your first trademark request in another country will not be taken into account when deciding on the validity of the request you would then file in this second country.
The priority right has not only a legal objective but also a strategic and economic objective for a company. For example, after filing a first patent request, a company may take its time prospecting the markets in other countries in order to determine where the patent request might be most lucrative.
Normally, a patent right must be requested. Therefore, for each later request filed during the priority right period you must mention the date (and proof) of your first request.
WIPO's Digital Access Service (DAS) is an electronic system that facilitates the secure exchange of priority documents and similar documents between national patent services.
This method serves as an alternative to the supply of a certified copy of a previous patent application of which priority is claimed.
The legal basis for this accession is Article 4 §5 of the Royal Decree of 2 December 1986 on the application for, grant and maintenance of invention patents.
WIPO member states can accede as both a depositing state and as an accessing state.
For the time being, Belgium only accedes as an accessing state on 1 November 2020.
National patent services of accessing states undertake to download certain documents (such as priority documents) from the WIPO DAS portal at the request of the patent applicant. This will usually be done at the time of a second filing. In Belgium, a patent applicant can indicate on the application form that the priority documents are available online and provides the DAS access code. The national patent service then retrieves the priority documents from the WIPO DAS portal using the DAS access code.
National Patent Services of Depositing States undertake to upload, at the request of an applicant, certain documents of the patent application on the WIPO DAS portal. This will usually be done at the time of the first filing. This will give the patent applicant a DAS access code for the uploaded documents.