News | Federal Regional Court of the 2nd Region grants appeals for divisional patent applications

The Federal Regional Court of the 2nd Region recently granted two appeals, from the same owner, reversing BRPTO’s decisions that shelved divisional applications filed in the appellate level of the parent application, due to the joint interpretation of the caput of art. 26 of Law No. 9.279/96 and art. 32 of Normative Instruction No. 30/2013. Such decisions generate jurisprudence for similar cases and represent an important step in the understanding of restrictions applied to divisional applications before the BRPTO.

The appeals pointed to the restrictive effect of the interpretation, since the caput of art. 26 of Law No. 9,279/96 (Industrial Property Law) provides that a patent application may be divided until the end of the technical examination by the BRPTO. Furthermore, it was pointed out that art. 212, paragraph 1, of the Industrial Property Law grants the administrative appeals filed before the BRPTO full devolutive effect, from which no limitation is comprehended regarding the review of the procedure initiated at the first administrative level, including the generation of new technical examinations on appellate level.

The appeals also highlighted the violation of the principle of publicity of administrative acts, as well as the principles of the adversarial, of the legal certainty, and of the full defense, considering that the events chosen as a time frame occur before the disclosure of the act of rejection of the privilege and the issuance of the conclusive technical opinion.

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