Article | Updates on Brazilian IP Issues – Patents

In the year 2023, the BRPTO took an active role regarding changes in the field of patents. In many declarations made by high-ranking members, the objective of reducing the time of examination for patent applications in the BRPTO was mentioned.

Besides those statements, which we will return to in a few paragraphs with a new resolution of the BRPTO, the year was filled with public consultations. The first Public Consultation was regarding the revoking of Normative Instructions (IN) 30 and 31/2013 and making it into only one Ordinance that would encompass all the matters of those two former resolutions. Remembering, IN 30/2013 states general norms of procedure to the particularities of patent applications, and IN 31/2013 states general norms of procedure to the formal particularities of patent applications. Thus, the text taken to the public consultation of the new ordinance brought general norms of procedures to the particularities of the formal and the content of patent applications.

However, no new legislation is in force, but we can expect some amendments in this regard in the next year.

Another Public Consultation that was made available by the BRPTO this year was referring to the amendments to Articles 32 and 33 of the IPL. Article 32 establishes a limited time to perform amendments to the application, and Article 33 defines the 36-month term for requesting the examination. This public consultation was available on the BRPTO website from  October 6 to November 15, 2023, and some consequences of this can already be seen.

From the responses obtained by the BRPTO, they assessed that the responders did not consider it relevant to amend the legislation. However, a recurring suggestion was to change the queue order due to the examination request, which the BRPTO accepted. On December 12, by means of the Official Bulletin RPI 2762, they notified that the distribution of patent applications for technical examination, and the consequent carrying out of the examination, will now be ordered by the date of the examination request, changing the current order, determined by the filing date of the application.

Besides the public consultation, which happened in the administrative instance, this year, some court decisions had brought a different understanding to the division of applications in the appeal phase, generating jurisprudence on this subject in favor of divisional applications after the issuance of a rejection decision.

Referring to the Patent Prosecution Highway (PPH) program, which reached its request limits in July 2023 for all the technology areas, the annual cycle will begin on the first day of January, as stated in Art. 5, paragraph 4 of Ordinance 78/2022. Initially, with no change at the annual limit of 800 requests.

Moreover, in the general Brazil overview in the field of innovation, Brazil ranked 49th in the Global Innovation Index (GII) of 2023, entering the Top 50 and climbing 5 positions from last year’s index.

Authors: Anahi Carvalho and Tainara Barbosa