Utility Models: Brazil

General Information

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

Novelty Requirements : 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.

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. The expectative is to reduce considerably this time limit to exam of the patents and utility models.

Protection Period : 15 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 Payments : 6 (six) months with payment of additional fees.

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:

  • 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 
  • Commercialization that does not meet the needs of the market.

 

Filing Requirements

Utility Models 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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