What is the meaning of “public’s advanced accessibility”?
From the time of filing a patent application, a period of 18 months will pass, during which text and drawings which are attached to the application are not accessible to the public; this means that anyone requesting a copy of that application or details of the constructive aspects and protection of it, cannot do it as the Ministry will not release any information or copies.
This secrecy’s regime offers the patent’s owner various advantages that cannot all be listed, but amongst which some are worth remembering: the difficulty in acting in any way by competitors who cannot have any knowledge of what is actually been “patented”; the option of the inventor to retire the application avoiding others finding out the content of it; the possibility of prolonging the period to extend it abroad (without priority) for 6 months further; and so on.
Next to these positive aspects, this secrecy presents a problem in legally protecting the invention against possible infringement, as “the effects of the patent start from the date when the description and the possible drawings are made accessible to the public” (art. 53 part 2 I.P.C.). Therefore, as long as the patent application is kept secret, nothing can be done directly against the infringer, but it is first necessary to officially give notice of the application and only then the action can be considered illicit.
This obviously complicates matters a little, and to avoid any inconvenience the law allows the owner to ask for the anticipated public’s advanced accessibility, by marking the box “yes” on the proper form: in this case the text of the patent application will become public after only 90 days and from that time the invention can be protected normally. The choice between 18 months and 90 days depends on the commercial strategies one wants to follow, but usually it is preferable keeping the application secret the longest possible time.