BRAZIL Law and Practice Contributed by: Gabriel F Leonardos, Claudio Barbosa and Viviane de Medeiros Trojan, Kasznar Leonardos Intellectual Property
1.2 Grant Procedure Anyone seeking protection for an invention in Brazil shall apply to the Brazilian Patent and Trade Mark Office (BRPTO). The proceeding is governed by the LPI and the BRPTO’s guide- lines. An invention shall be patentable if it meets the requirements of novelty, inventive step and industrial application. On the other hand, an object of practical use, or part thereof, shall be patentable as a utility model if it is intended for industrial use, presents a new shape or arrange- ment, and involves an inventive step, resulting in functional improvement in its use or manu- facture. 1.3 Timeline for Grant Procedure Length of Grant Procedure It currently takes an average of four and a half years for a patent to be granted by the BRPTO, though the timeline can vary by field. Fast-track options are available, including Patent Pros- ecution Highway programmes with the USPTO, JPO, and other foreign offices. Since 2019, the BRPTO has implemented a programme to address the backlog, leading to a reduction in processing times. This includes a special procedure allowing applicants to use patent searches already conducted by foreign offices, which is expected to speed up exami- nation, as over 80% of patent applications in Brazil are filed by foreign applicants with prior assessments abroad. By 4 January 2024, the backlog had decreased from 149,912 applications in 2016 to 3,573. Of the remaining, 1,960 are from the chemical field, which has the highest number of pending appli- cations.
Representation The patent application may be filed by the inventor or the right-holder (Article 216, LPI). As per Article 217, a person domiciled abroad is required to have a duly qualified attorney domi- ciled in Brazil with powers to represent such a person or entity administratively and judicially – including the right to receive summons. Fees The following official fees typically apply (with an exchange rate of approximately USD1 = BRL6). • USD29 for filing a patent application (inven- tion or utility model). • USD100 for requesting examination of an invention patent application (up to ten claims). • USD63 for requesting examination of a utility model patent. The annuity fees within the ordinary term are as follows. • For an invention patent: (a) Pending application – approximately USD49. (b) Granted patent – between USD130 and USD334, depending on the patent’s age. • For a utility model: (a) Pending application – approximately USD33. (b) Granted patent (3rd to 6th year) – between USD68 and USD202, depending on the patent’s age. 1.4 Term of Each Intellectual Property Right Patents are granted for 20 years and utility mod- els for 15 years from the filing date, as per Article 40 of the LPI. The minimum ten-year term from the grant date, previously protecting applicants from BRPTO delays, is no longer applicable fol-
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