Due to COVID-19 and the way in which usual interpersonal relationships changed almost overnight, we have been forced to evolve and develop new tools and procedures using, mostly, technology.
Since 2008, electronic signatures and documents are allowed and regulated in Guatemala by the Law for the Acknowledgement of Communications and Electronic Signatures, but they are not frequently used in intellectual property processes. According to this law, legal effects will not be denied for the singular reason that the document was issued and signed electronically.
Our legislation classifies two types of electronic signatures: standard electronic signatures and advanced electronic signatures. A standard electronic signature is the data attached to an electronic document that is used to identify the signatory. An advanced electronic signature is an electronic signature that meets the following requirements:
- It is uniquely linked to the signatory.
- It allows the identification of the signatory.
- It is created by using means that the signatory can maintain under its control.
- It is linked to the data in such a manner that any subsequent change is detectable.
The main difference between both types of signatures is the identification of the signatory. In a standard electronic signature, there is no formal requirement nor pattern to identify the signatory. In an advanced electronic signature, in addition to meeting the above-mentioned requirements, the signatory has to be registered or validated by one of the authorized institutions in Guatemala.
Unlike other countries, the Patent and Trademark Office in Guatemala does not have an electronic system to file applications and, even though our legislation allows it, it has never had a case with electronic documents before. Therefore, every application and document is filed physically and signed with a wet signature.
Given the current circumstances, most people will find it easier and more convenient to use electronic signatures, for example, in patent assignment documents received from abroad. Even if it is not a common practice, according to our law, it is allowed and therefore it must be admitted by the Registry.
Article 39 of the Law for the Acknowledgement of Communications and Electronic Signatures, allows foreign-issued electronic documents and signatures by stating:
“When determining if a certificate or an electronic signature has legal consequences, or the extent they may have, it will not be taken into consideration:
a) The place where the document was issued or where the signature was created.
b) The location of the place of business of the issuer or signatory. […]”
Therefore, every document that is issued abroad will have the same legal consequences of those issued in Guatemala, as long as the reliability of the documents and signature is proven. In other words, if the document was signed in another country, in order to have legal effects, the signature has to meet the requirements for an advanced electronic signature, and it has to be validated in Guatemala.
It is important to take into consideration when filing a patent application, that the assignment document is filed electronically, thus, the only document that needs to be sent to Guatemala legalized and apostilled is the Power of Attorney (POA). The POA has to be registered before filing it in our Registry and, because the registration is a formal notarial process, it cannot be sent electronically.
Given the huge importance of patents and how the world keeps evolving, it is necessary for the Intellectual Property Registry in Guatemala to keep up with technology. By turning the filing of electronically-signed assignment documents into common practice, we will have taken an enormous step toward the achievement of a more technological IP Registry.