BRAZIL Law and Practice Contributed by: Gabriel F Leonardos, Claudio Barbosa and Viviane de Medeiros Trojan, Kasznar Leonardos Intellectual Property
4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation
3.7 Procedure for Construing the Terms of the Patent’s Claim In Brazil, there is no separate phase or proce- dure to construe the claims. Instead, it is up to the court and the court-appointed expert to determine which is reasonably within the scope of the patent protection. As set forth by Article 41 of the LPI, the scope of the protection conferred by the patent shall be determined by the content of the claims and will be construed based on the specifications and drawings. In Brazil, claims must be worded using the con- nective “characterised by”. All features following “characterised by” are within the patent scope. When there is any doubt on the meaning of a word used after the expression “characterised by”, the judge and/or the court-appointed expert must use the description of the patent to prop- erly interpret the scope of the patent. 3.8 Procedure for Third-Party Opinions Third parties may participate as amici curiae in patent lawsuits based on the case’s relevance or broader social impact. Such participation can be requested by either party or the third-party itself, and judges may appoint amici curiae ex officio (Article 138, Brazilian Civil Procedure Code). Amici curiae generally cannot appeal. Independent experts or consultants can also provide opinions to a party, which can be sub- mitted as documentary evidence without direct involvement in the dispute.
A patent may be invalidated if granted contrary to any of the provisions of the LPI, particularly if it lacks novelty, inventive step, or industrial appli- cation or does not disclose the full contents of the invention. There are two possible ways of obtaining the declaration of nullity of a patent (see 1.10 Post- Grant Proceedings Available to Owners of Intellectual Property Rights and 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property ): • by way of a post-grant review request before the BRPTO, to be filed within six months of the issuance of the patent; and • by way of a judicial nullity action before the federal courts, to be filed at any time during the life term of the patent. 4.2 Partial Revocation/Cancellation Partial revocation or cancellation is possible. According to Article 47 of the LPI, the nullity of a patent may apply to all the patent claims or to part of the claims. However, in case of a partial nullity it is necessary that the remaining claims constitute patentable subject matter themselves. 4.3 Amendments in Revocation/ Cancellation Proceedings Amendments are possible in revocation or can- cellation proceedings, though rare. Under Article 32 of the LPI, amendments can be made by the applicant until the patent examination request, but broadening the scope of claims is not per- mitted.
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