In FAQ

1) What is a patent?

A patent is a legal grant given by a State to an inventor, providing the inventor with exclusive rights to their invention for a specified period of time. This exclusive right typically allows the inventor to prevent others from manufacturing, using, selling, or importing the patented invention without their permission. In exchange for this exclusive right, the inventor is required to disclose the details of their invention to the public through the patent application, which helps advance technological knowledge.

 


 

2) Why is it important to patent?

Patenting is important for several reasons, primarily centered around protecting and incentivizing innovation.

The exclusive rights ensure the patent holder to prevent third parties, without his consent, from producing, using, putting up for sale, selling or importing a product covered by his patent and/or a process or product obtained directly by a process patented by him.

Thus, in addition to being an important instrument of competitiveness, the exclusivity granted by the patent will allow the inventor to create opportunities for monetization. Inventors may license their patented technology to other companies, generating revenue through licensing fees or royalty payments. Additionally, inventors may use their patents as assets to attract investors or secure funding for further development.

 


 

3) What are the types of patents and their expiration dates?

The Industrial Property Law provides for three types of patents: Invention Patent, Utility Model and Certificate of Addition.

The Invention Patent refers to products or processes that meet the requirements of inventive step, novelty and industrial application and is valid for 20 years from the date of filing.

The Utility Model, on the other hand, consists of an object of practical use, or an improvement or part of this object, susceptible of industrial application, which presents a new form or disposition, involving an inventive act and is valid for 15 years from the filing date.

Finally, the Certificate of Addition of Invention is an improvement or development introduced in the object of an invention patent, even if devoid of inventive step, but still within the same inventive concept. The validity date of the certificate of addition is the same as that of the patent, due to its accessory nature.

 


 

4) What cannot be patented?

Abstract ideas are not patentable, just as they cannot be protected by discovered patents, scientific theories, mathematical methods; purely abstract conceptions; commercial, accounting, financial, educational, advertising, drawing and inspection schemes, plans, principles or methods; literary, architectural, artistic and scientific works or any aesthetic creation; computer programs themselves; game rules; operative or surgical techniques and methods, as well as therapeutic or diagnostic methods; the whole or part of natural living beings and biological materials found in nature, or even isolated from them, including the genome or germplasm of any natural living being and natural biological processes.

 


 

5) What are the steps to protect a patent?

The first recommended step is to conduct a patentability search, consisting of a study of the invention and conduct a worldwide search on the state of the art, to determine if your invention is eligible for a patent, and to assess whether the patentability requirements are fulfilled. 

The patentability requirements are novelty, inventive step (non-obvious) and industrial application (useful).

If the patentability of the invention is found, the patent application must be submitted to the Brazilian PTO, containing the descriptive report, set of claims, list of sequences (if applicable, for applications in the biotechnological area), drawings (if applicable) and summary, as well as the application the respective proof of payment of the official fees.

As a general rule, after filing, the patent application will remain confidential for 18 months, and the holder may request its publication in advance.

After the application is published, the holder of the application must request the Brazilian PTO to carry out the substantive examination of the patent, which will consist of verifying compliance with the patentability requirements.

During the examination of the request, the Brazilian PTO may formulate requirements for adjustments or modifications to the request, which must be complied with in order for the request to proceed, as well as the Brazilian PTO may issue technical opinions.

Once the examination is finished, the patent application will be granted or rejected by the. If granted, payment of the final fees for the issuance of the Charter will suffice and the patent will be granted. If the application is rejected, an appeal may be filed.

 


 

6) Is it mandatory to request examination of the patent application?

The patent holder must mandatorily request the examination of the patent application within a period of up to 36 months, counting from the filing date. If the request of examination is not filed, the application will be shelved.

 


 

7) How long does it take the Brazilian PTO to analyze a patent application?

The time it takes for the Brazilian PTO to examine a patent application may vary widely and is influenced by several factors, including the backlog and the technological field of the patent. 

The average time is about 4 years as from the filing of the request for examination (that should be filed within 36 months from the filing date). The most critical areas with the longest time between filing the request of examination and the Brazilian PTO’s first decision are the Chemical, Pharmaceuticals and Telecommunication with around 6 years of waiting.

 


 

8) Is it possible to speed up the examination of a patent application?

Yes, Brazilian PTO offers several modalities and ways to prioritize the examination of the patent application, among which we highlight:

  • If the depositor is an individual aged 60 or over; physical person with physical or mental disabilities; physical person with a serious illness; microenterprise (ME), individual microentrepreneur (MEI) or small business (EPP); or Scientific, Technological and Innovation Institution (ICT);
  • If the depositor is a startup company, as defined in Complementary Law No. 167, of April 24, 2019;
  • The granting of a patent is a condition for obtaining financial resources by development agencies or national official credit institutions;
  • The invention described in the patent application is being copied or marketed by third parties without authorization;
  • Third parties are being accused, by the applicant of the patent application, of copying or commercializing the invention;
  • Third parties that already had a certain technology and this was subsequently applied for as a patent by third parties;
  • Green Patents, that is, patents that deal with Green Technology, which are environmentally friendly technologies. The list of Green Technologies is based on the inventory of the World Intellectual Property Organization – WIPO and includes technologies aimed at alternative energies, transport, energy conservation, waste management and sustainable agriculture;
  • Patent of products or processes used in the health field for the diagnosis, prophylaxis and treatment of AIDS, cancer, rare diseases or neglected diseases (for example, Chagas disease, dengue, chikungunya, Zika, malaria, tuberculosis, rabies, COVID19 etc.).
  • BR Priority Program: on the condition that the patent application abroad has been applied for based on a patent application previously filed in Brazil (Brazilian priority);
  • PPH Project – Patent Prosecution Highway: the Brazilian PTO maintains partnerships with Patent Offices in some countries (currently, there are already 15 partner countries and with the possibility of this number increasing: Japan, Argentina, Chile, Colombia, Costa Rica, Denmark, Ecuador, Paraguay, Peru, Uruguay, Europe, USA, United Kingdom, China and Austria) and together they offer this type of priority exam;
  • The technology described in the patent application is due to public financial support from the Union, States, Municipalities, municipalities, public foundations, mixed-capital companies, public companies, autonomous social services and social organizations;
  • The product and / or process claimed in the patent was licensed or placed on the market through sale, import or export.

 


 

9) Is the patent valid only in Brazil?

Yes, patent protection is ensured only in Brazil. If there is an interest in protecting the patent abroad, it is necessary to file or extend the patent to each of the countries of interest, and there are international treaties (Paris Convention and PCT) that facilitate the extension of patents abroad.

However, the extension of the patent abroad must be done within a period not exceeding 12 months from the date of filing in Brazil, under penalty of, if not, the object of the patent entering the public domain in the countries for which it is not. has been extended.

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