Ministry

Ministry of Development, Industry and Foreign Trade

Competent Administration

National Institute of Industrial Property

Web Site

http://www.inpi.gov.br/

(in Portuguese)

Address

Praça Mauá 7

18 andar – Centro 20081-240

Rio de Janeiro - R.J.

Telephone

(55 21) 2223 4182

Telefax

(55 21) 2263 2539 and (55 21) 2233 0334

President

Mr. Jorge de Paula Costa Ávila

Info updated by WIPO

07-2007

Background

In 1809, Brazil was the fourth country in the world to enact a patent law. In addition, Brazil was one of the founding members of the Paris Convention in 1882. Brazil became a member of the Patent Cooperation Treaty (PCT) in 1978, and a member of the World Trade Organization (WTO) in 1995. Brazil signed the 1978 UPOV Act in 1999.

To be patentable in Brazil, an invention must:

  1. be novel. To comply with the novelty requirement, the invention must be new in relation to the world’s body of technological knowledge.
  2. involve an inventive step. An invention is held to involve an inventive step when it is not obvious to a person of ordinary skill in the relevant art.
  3. be capable of industrial application. Industrial applicability is satisfied when the invention can be manufactured or reduced to practice in the respective industry.

Excluded from patentability under Brazilian law are:

  • inventions that are contrary to public morality
  • inventions that are in violation of public order and custom
  • inventions that are opposed to public health, welfare, or public security

In addition, the following are not considered to be inventions, and therefore are not patentable:

  • discoveries relating to or resulting from living organisms, including germplasm and all things occurring in nature
  • discoveries based purely upon natural laws or items occurring in nature
  • purely abstract concepts as well as commercial, financial, advertising, and business models
  • presentations of information, rules of games, teaching methods
  • surgical or medical techniques
  • computer programs per se
  • architectural drawings, works of art, music, books, films, and other representations of information (however, these may be protectable under other Brazilian laws)

Brazil has a "first-to-file" patent system (as opposed to first-to-invent).

The Brazilian Patent, following Art. 4 and 11 of the Paris Convention, provides for a twelve-month grace period for disclosure of an invention. Applications must be submitted in Portuguese.

The Patent Applications Submission System and Procedure

The INPI (National Institute of Industrial Property) is the body that examines patent applications. Registered Industrial Property Agents and Attorneys-at-law may represent patent applicants before the INPI.

Patents are filed with INPI directly or under Patent Cooperation Treaty rules, and examined by INPI. If the examiner finds relevant prior art, the application will be rejected or the applicant will be required to limit his claims in order to overcome the cited prior art. If there is no relevant prior art and the application meets all legal requirements, it will be automatically allowed.

Applications should refer to only one invention or one inventive idea. However, applications may be divided upon request, or in cases where each divided application satisfies patentability requirements on its own. Patent applications shall contain, in accordance with the conditions laid down by INPI:

  1. a request
  2. a description
  3. claims
  4. drawings, if any
  5. an abstract
  6. proof of payment of the filing fee

During the technical examination, the examiner will issue a search report that outlines:

  • the patentability of the subject matter
  • suitability of the application for the type of protection sought
  • request for an amendment and/or division of the application
  • technical requirements

The Brazilian Industrial Property Law expressly provides for infringement by equivalency as follows: "Article 186 - The crimes of this Chapter are committed even if the violation does not affect all the claims of the patent or if it is restricted to the use of means equivalent to the subject matter of the patent." This is similar to the "doctrine of equivalents" in the US.

It is mandatory that Brazilian patent applications be published 18 months from the filing or priority date.

Patent Search Capability

Brazilian patent documents are included in the esp@cenet search collection in the "Worldwide" patent database. Using the "advanced" search options, the following search headings may be used:

  • Keyword(s) in title
  • Keyword(s) in title or abstract
  • Publication number
  • Application number
  • Priority number
  • Publication date
  • Applicant(s)
  • Inventor(s)
  • European Classification (ECLA)
  • International Patent Classification (IPC)

On esp@cenet, you can limit your search to return only Brazilian patent documents by typing "BR" in the "Publication number" or "Application number" search fields.

Alternatively, there is a Brazilian patents database search available on the National Institute of Industrial Property website. This provides the same search options as esp@cenet and is in Portugese.

The full-text of the Brazilian documents are not currently searchable, but PDF versions of the applications are available from both databases. Titles and abstracts are in Portugese.

Patent Term

Currently, an invention patent has term of 20 years, and a utility model patent a term of 15 years. The term is calculated from the filing date.

Renouncement, Loss of Rights and Revocation

Patent rights may be renounced, apart from cases where a third party rights are affected. The patent owner may loose his or her rights in case of non-payment of Government fees or if he or she does not maintain an attorney in Brazil. Revocation of patents is also possible in cases where after 2 years of granting, compulsory licenses were not sufficient to control economic abuses, or if the licensee fails to produce the patented product.

Opposition

Prior to the end of the examination process, third parties may submit documents and information for the examiner to consider. Also, for six months after the patent is granted, third parties may request "administrative nullity". There is no specific patent re-examination procedure, though it is possible to revoke some claims of a patent based on results of a nullity action before the court, or an administrative decision of the Brazilian PTO.

Compulsory Licensing

A compulsory license may be granted in Brazil if a patent owner exercises his or her rights "an abusive manner" or if he or she uses it to "abuse economic power under the terms of an administrative or judicial decision". The main reasons for compulsory licensing are:

  • failure of the license holder to use the subject matter of a patent on the territory of Brazil
  • failure to manufacture or incomplete manufacture of the product or failure to completely use a patented process, except for failure to work due to lack of economic viability, in which case importing shall be admitted
  • marketing that does not satisfy the needs of the market
  • in cases of national emergency, including situations in which there is an impending public health crisis

ANVISA

The granting of patents for pharmaceutical products or processes depends on prior National Sanitary Agency (ANVISA) consent.” Article 229-C of the 2001 Law 10.196 gives ANVISA the authority to review patent applications claiming pharmaceutical products or processes. This is a major factor contributing to the patent backlog in Brazil.

Patent Statistics

It takes an average of 5 years and 2 months for a patent to be granted in Brazil, and there is a backlog of about 130,000 patent applications. In 2005, the Patent and Trademark Office received over 23,000 patent applications and granted fewer than 8,000.

National Applications

1990

1997

2004

Residents

2385

2683

3892

Non-residents

4191

3758

2356

Total

6580

6441

6248

PCT

1990

1997

2004

Residents

-

15

10

Non-residents

436

8599

7881

Total

436

8614

7891

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