During the first two quarters of 2017, a joint initiative between the Ministry of Industry and Foreign Trade and Services of Brazil and the Brazilian Patent and Trademark Office (BPTO) implemented a public consultation with the aim of creating an urgently needed procedure that would take on the examination backlog of patent applications in Brazil. This backlog is comprised of more than 230,000 patent applications that have been pending for evaluation by the Office, some for over ten years.
As the proposal is currently written, it details the criteria for which patent applications will be issued without evaluation and within a ninety-day period. To qualify, the applications must not have been the subject of third party observations, and they must have been filed before the starting date of this provision. The annuities of said applications must have been regularly acquitted. With this accelerated procedure, the Office would grant the applications as filed, without consideration for eventual amendments introduced after filing.
This exceptional and simplified granting procedure would not apply to patent applications that are related to the pharmaceutical industry, nor supplementary protection certificates or divisional applications.
An opt-out procedure will be provided for in order to leave open the possibility for applicants who wish to have their applications substantively examined.
Although this measure of automatic grant is controversial, the Office suggested that they did not see any other viable option, in the short term, to reduce the backlog. The implementation of this accelerated application process, initially planned for 2018, has been delayed, for the moment, due to technical problems with the information system of the Office.
If this urgent measure could be put in place promptly (though not initially before the upcoming elections in October 2018), then it would be necessary for applicants to:
- Identify the strategic applications for which a substantial examination would be preferable in order to make an opt-out request in that circumstance
- Keep an eye on the applications of competitors in order to file third-party observations before the ninety-day deadline, which would result in inadmissibility of said applications for accelerated grant
An anticipatory and adaptive strategy will allow applicants to take advantage of this exceptional measure.