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3 November 2017Jurisdiction reportsMaria Alice Calliari and Vinícius Loureiro Casciano

Brazil jurisdiction report: Can the patent backlog be beaten?

It is unsurprising that there is a growing consensus that problems causing the backlog (such as a lack of examiners and lack of financial autonomy) are detrimental to the Brazilian economy. The “Global Innovation Index 2017” report ranks Brazil at number 69, behind all the other BRICS (Brazil, Russia, India, China and South Africa) countries.

The INPI is currently staffed with 326 examiners and, as of June 2017, 231,184 patent applications were pending a first instance decision. In the present scenario, the backlog of 349,089 applications would not be resolved until 2029. Seeking to reduce the examination timeframe, the INPI has launched a few fast-track programmes, in particular green patents, pharmaceutical inventions, patent prosecution highway (PPH), science and technology (S&T) institutions, and small and medium enterprises (SMEs), but none of those programmes has achieved a significant backlog reduction.

A radical proposal

More recently, however, the Brazilian government has seemingly shifted strategy and issued a public consultation on a radical proposal that would introduce a streamlined granting procedure. According to the proposal, most pending applications would simply be allowed as they had been published or had their national phase entry notified, without having their patentability requirements examined. Instead, patents would be granted with a general disclaimer calling attention to non-patentable subject matter.

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