20 May 2016Jurisdiction reportsAndré Venturini and Isabella Cardozo

Business brief 2016: Brazil


How do you register or secure patent rights, and is national or international coverage most appropriate?

Applicants must file patent applications at the Brazilian Patent and Trademark Office (INPI). A patent application will undergo both formal and substantive examinations before being accepted.

Patent rights are restricted to Brazil’s territory. However, Brazil is a member of the Paris Convention and is one of the Patent Cooperation Treaty contracting states, allowing applicants to claim foreign priorities.

Where can you find information on existing patents in your jurisdiction?

Patent information is scarce. The best place to access it for the time being is in the INPI’s database.

Applicants must be aware that many files (particularly old patent applications) are not electronically available.

Is there anything unusual about the patent law that companies should be aware of, and what are the most common mistakes businesses make?

Our patent law is well harmonised with corresponding foreign laws, especially with the European Patent Convention. For pharmaceutical cases, however, we have interference of the Brazilian food and drug administration (ANVISA) during prosecution of patent applications. According to our patent law, ANVISA must grant prior approval before a patent is granted. ANVISA’s analysis should be limited to public health issues only, but the fact is that ANVISA is relying on patentability requirements for denying approval. Its goal is to prevent patents for important drugs or those bought by the Brazilian Ministry of Health from being granted.

What are the key threats to patent owners, and what is the best strategy if you suspect someone is infringing your patent?

The INPI is one of the threats. The average backlog at the office for having a patent granted is 11 years. This term might even be higher in specific technological domains (14 to 15 years for telecom and pharmaceutical applications, for example).

On the court side Brazil is a very friendly country to carry out intellectual property enforcement inasmuch as we have specialised courts in IP for both cancellation and infringement actions (based in Rio de Janeiro and São Paulo). Preliminary injunctions are widely available and the recently enacted Civil Procedural Code has widened the possibilities for requesting a preliminary order to ascertain whether an infringement has taken place, even if there is no urgency in the request.


How do you register or secure trademark rights and what protection do they grant?

Brazil is a first-to-file country and trademark rights are acquired only upon registration.

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