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This article was originally published on June 1, 2026 and has been updated to reflect recent legal developments.
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Sections 44.1 and 44.2 of the Intellectual Property Code specifically provide for the publication of patent applications. Publication ensures that the inventor’s rights are protected (Section 46) while simultaneously informing the public, fostering technological progress and innovation. The Code carefully balances confidentiality (Section 45), transparency (Sections 44.1–44.2), and provisional rights (Section 46) to achieve this purpose.
A patent is granted to provide rights and protection to the inventor after an invention is disclosed to the public. (E.I. Dupont De Nemours and Co. v. Francisco, G.R. No. 174379, August 31, 2016)
One important stage in the patent process is the publication of the patent application. Publication ensures disclosure of inventions to the public while protecting the rights of the inventor. This article discusses the legal basis for publication under the Intellectual Property Code and ultimately answers the question: should a patent application be published?
Publication Requirement
Section 44.1 of the Intellectual Property Code states the patent application shall be published in the Intellectual Property Office (IPO) Gazette together with a search document established by or on behalf of the Office citing any documents that reflect prior art, after the expiration of eighteen (18) months from the filing date or priority date.
This requirement ensures that inventions are disclosed to the public while also giving notice that they may eventually be protected by a patent.
Confidentiality of Patent Application
However, before publication takes place, the law ensures that the patent application remains confidential.
Section 45 of the Intellectual Property Code deals with the confidentiality of patent application before publication. It states that a patent application, which has not yet been published, and all related documents, shall not be made available for inspection without the consent of the applicant
This provision balances the inventor’s right to confidentiality with the eventual public interest in disclosure.
Contents of a Patent Application
What should be the contents of a patent application?
Section 32.1 of the Intellectual Property Code states that a patent application shall be in Filipino or English and shall contain the following:
- A request for the grant
- A description of the invention
- Drawings necessary for the understanding of the invention
- One or more claims; and
- An abstract
- A request for the grant shall contain a petition for the grant of the patent , the name and other data of the applicant, the inventor and the agent and the title of the invention.
Identification of the Inventor
Take note that under Section 32.2 of the Intellectual Property Code, no patent may be granted unless the application identifies the inventor. If the applicant is not the inventor, he may be required to submit an authority for the appointment of an agent or a representative.
Manner of Disclosure of Invention
The Intellectual Property Code further requires that the invention be adequately disclosed.
Section 35.1 of the Intellectual Property Code states that the application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. Where the application concerns a microbiological process or the product thereof and involves the use of a micro-organism which cannot be sufficiently disclosed in the application in such a way as to enable the invention to be carried out by a person skilled in the art, and such material is not available to the public, the application shall be supplemented by a deposit of such material with an international depository institution.
The Abstract
With respect to the abstract, Section 37 of the Intellectual Property Code provides that it shall consist of a concise summary of the disclosure of the invention as contained in the description, claims and drawings in preferably not more than one hundred fifty (150) words.
Further, the abstract must be drafted in a way which allows the clear understanding of the following:
- the technical problem,
- the gist of the solution of that problem through the invention, and
- the principal use or uses of the invention.
The abstract shall merely serve for technical information.
Amendment of a Patent Application
May a patent application be amended? The law answers in the affirmative.
Section 49 of the Intellectual Property Code states that an applicant may amend the patent application during examination: Provided, That such amendment shall not include new matter outside the scope of the disclosure contained in the application as filed.
Inspection of Published Applications
Once a patent application is published, transparency becomes the rule.
In Section 44.2 of the Intellectual Property Code, after publication of a patent application, any interested party may inspect the application documents filed with the Intellectual Property Office.
However, the exercise of such rights is subject to the following conditions under Section 46 of the Intellectual Property Code, to wit:
“SECTION 46. Rights Conferred by a Patent Application After Publication. — The applicant shall have all the rights of a patentee under Section 76 against any person who, without his authorization, exercised any of the rights conferred under Section 71 of this Act in relation to the invention claimed in the published patent application, as if a patent had been granted for that invention: Provided, That the said person had:
46.1. Actual knowledge that the invention that he was using was the subject matter of a published application; or
46.2. Received written notice that the invention that he was using was the subject matter of a published application being identified in the said notice by its serial number: Provided, That the action may not be filed until after the grant of a patent on the published application and within four (4) years from the commission of the acts complained of.”
Restriction on Publication for National Security
Notwithstanding the general rule on publication, the Intellectual Property Code recognizes an important exception.
Section 44.3 states that the Director General, subject to the approval of the Secretary of Trade and Industry, may prohibit or restrict the publication of an application, if in his opinion, to do so would be prejudicial to the national security and interests of the Republic of the Philippines.
So should a Patent Application be published? The answer is yes. Sections 44.1 and 44.2 of the Intellectual Property Code specifically provide for the publication of patent applications. Publication ensures that the inventor’s rights are protected (Section 46) while simultaneously informing the public, fostering technological progress and innovation. The Code carefully balances confidentiality (Section 45), transparency (Sections 44.1–44.2), and provisional rights (Section 46) to achieve this purpose.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.
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