Patent Laws in Brazil
The Law of Patents in Brazil is primarily governed by the Industrial Property Law – Law Nº 9.279, of May 14, 1996, according to which the author of an invention or of a utility model shall be afforded the right to obtain a patent securing him the property therein, under the terms set out by this Law.
What inventions can be protected as patents in Brazil?
An invention is patentable in Brazil if it is new, involves an inventive step and is industrially applicable. The Law further states that am object shall be patentable as utility model if can be industrially applied, presents a new shape or arrangement and involves inventive step, thereby resulting in functional improvement in use or manufacture.
What inventions cannot be protected as patents in Brazil?
Following are not considered to be inventions or utility models and are therefore unpatentable in Brazil:
- discoveries, scientific theories and mathematical methods;
- purely abstract concepts;
- schemes, plans, principles and methods of a commercial, accounting, financial, educational, publishing, lottery or fiscal nature;
- literary, architectural, artistic and scientific works and aesthetic creations;
- computer programs per se;
- presentations of information;
- rules of games;
- operating or surgical techniques and therapeutic or diagnostic methods for use on the human or animal body; and
- natural living beings, in whole or in part, and biological material, including the genome or germ plasma of any natural living being, when found in nature or isolated therefrom, and natural biological processes.
Patent Application In Brazil
How to file a patent in Brazil?
In accordance with the conditions laid down by the INPI, a patent application in Brazil shall contain the following details:
- a request;
- description;
- claims;
- drawings, if any;
- an abstract;
- proof of payment of the filing fee.
Patent application claiming priority from earlier application(s) can be filed as:
a) PARIS CONVENTION PATENT APPLICATION
b) PCT NATIONAL PHASE PATENT APPLICATION
How to file an PCT national phase Patent Application in Brazil?
For entering national phase in Brazil based on international application, one has 30 months starting from the earliest priority date.
In case the aforesaid deadline is missed, it is possible to reinstate the application. This reinstatement of rights of the applicant, regulated by rule 49.6 of the PCT agreement, requires the payment of an additional fee and two months extension by PCT.
The official language for submitting application for registration of patent and other documents in Brazil is Portuguese.
How to file a Patent application claiming Priority?
A patent application claiming priority in Brazil shall be made at the time of filing, and may be supplemented within 60 (sixty) days by other priorities that are earlier than the date of the filing in Brazil.
A patent application claiming priority shall be supported by: document of origin, stating number, date, title, description and, where appropriate, claims and drawings, accompanied by an uncertified translation of the filing certificate or equivalent document. If the applicant fails to submit evidence at the time of filing the priority application, then the evidence shall be submitted within 180 days from the filing date.
What is the term for filing a patent application in Brazil?
The term for filing a patent application in Brazil, claiming conventional priority is 12 months from the date of priority. This deadline may be restored by the term of 60 days if legitimate reasons are provided. However, the chances of successful restoration are minor.
What are the documents required for filing a patent application in Brazil?
Following documents are required for filing a Patent application in Brazil:
- The patent application along with the Claims, title and abstract should be submitted to the Brazilian National Institute of Industrial Property in Portuguese. In case of late filing of the remaining translation it is possible to file the same within 60 days of the filing date.
- To obtain the filing date, it is necessary to provide the Brazilian Patent Office with information regarding the applicant(s) and the inventor(s).
- If applicable, a certified copy of the Priority Document should be submitted within 60 days from the filing date in Brazil. A digital copy is usually enough for filing; however, the original may be requested by the Office.
- A digital copy of a signed Power of Attorney is enough for filing the application. The POA can be submitted within 60 days from filing in Brazil.
- If the applicant is not the inventor, it is recommended to file the Inventor’s Authorization. It may be submitted after filing the application, official legalisation or notarization is not required.
Patent Prosecution In Brazil
Patent application examination in Brazil
Patent applications in Brazil are examined as to compliance with formal and substantive requirements. If on preliminary examination, it is found that the Patent application is in order then the same shall be recorded and the date of submission shall be the filing date.
An application which does not meet the requirements of preliminary examination, but which contains data relating to the object, the applicant and the inventor, may be submitted to INPI in return for a dated receipt setting out the requirements to be met, within 30 days.
The request for substantive examination should be filed within 36 months from the Brazilian filing date, or international filing date in case of national phase applications.
At the time of examination, the Patent Office will issue the Examination Report (FER) / Office Action with a set of objections/requirements response to which must be filed within 90 days from the date of issue of the FER.
Grant of Patents in Brazil
A patent is granted in Brazil once the application is allowed and a proof of payment of the corresponding fee is furnished. Thereafter, a patent certificate will be issued.
The payment of prescribed fee and furnishing of proof of payment shall be made within 60 days from the date of the formal allowance of the application.
Term of Patents in Brazil
A patent for an invention in Brazil is granted for a term of 20 years and for a utility model 15 years from the filing date.
The Patent Law of Brazil further states that the term of Patents in Brazil shall not be less than 10 years for inventions and 7 years for utility models, as from the date of grant, except where INPI is prevented from carrying out the substantive examination of the application.
Patent Annuity Payments In Brazil
When is the patent annuity due in Brazil?
The first payment must be made starting 24 months after the filing the patent and from here every year. The applicant has to make the payment during the first three months of each year. It is possible to extend this period up to six months, paying an additional fee.