Patents: Brazil

General Information

International Agreements : Paris Convention, Patent Cooperation Treaty (PCT), Nice Classification, Berne Convention, TRIP’S Agreement.

Patent Types : Invention Patent.

Novelty Requirements : Worldwide Novelty - According to the Article 11 of the Brazilian Industrial Property Law (Law 9.279/96): Article 11 - Inventions and utility models are considered to be new when not included in the state of the art. 
§ 1 - The state of the art comprises everything made accessible to the public before the date of filing of a patent application, by written or oral description, by use or any other means, in Brazil or abroad, without prejudice to the provisions of articles 12, 16 and 17.

Claiming priority : Yes – 12 months for Paris Convention and 30 months for PCT.

Examination : Nowadays the Brazilian Patent and Trademark Office is late with the patent and utility models examination. The grant decision is takes, more or less, 7 to 8 years to be done.

Protection Period : 20 Years.

Publication : The patent filing will remain in secret for 18 months. After that it will be published in the Brazilian Patent and Trademark Magazine.

Annuities : The annuities must be paid from the beginning of the third year counting from the deposit date or priority date. The payment should be effected within the first 3 (three) months of each annual period.

Grace Period for Annuity Payments : 9 months total (3 months + additional 6 months for extraordinary cases with payment of additional fee).

Compulsory Licensing : Yes - Brazilian Law do authorize compulsory license (It's an interpretation a little bit more extensive than the TRIPS). According to the Article 68 of the Law n.º 9.279/96, these are the case of compulsory licensing:
A patentee will be subject to have his patent licensed compulsorily if he exercises the rights resulting there from in an abusive manner or by means of it practices abuse of economic power that is proven under the terms of the law by an administrative or court decision. 
§ 1 - The following may also result in a compulsory license: 

  1. the non-exploitation of the subject matter of the patent in the territory of Brazil, by lack of manufacture or incomplete manufacture of the product or, furthermore, by lack of complete use of a patented process, except in the case of non-exploitation due to economic non-viability, when importation will be admitted; or 
  2. commercialization that does not meet the needs of the market.

That is other articles that also make possible the compulsory license in Brazil. 

Working or Nominal Working : Yes

Notes :

  1. There is a grace period of 12 months (non-prejudicial information disclosure) 
    that make possible the disclosure of the patent made by the inventor on the last 12 
    months before the filing date without problem with the novelty requirement.
  2. All patent documents must be translated to Portuguese, but in emergency cases 
    we can translate only the claims and file it before the BPTO with the international 
    publication of the PCT and amend the request with the rest of the translation 
    documents within 30 days. It's important to stress that the PCT international 
    phase modifications also must be translated and filed with the Patent National 
    Phase Request in Brazil.

 

Filing Requirements

Patent Filing Requirements

  1. Specification, claim, drawings, abstract, proof of payment of the filing fee.
  2. Power of Attorney simply signed. 
  3. Assignment Deed.

 

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