The Federative Republic of Brazil (Brazil) contains approximately half of the territory of the South American continent, and, with 194 million people, ranks as the fifth-most populated country in the world (2008). Furthermore, its GDP is ninth in the world (2008) and holds an important industrial position as a member of BRICs.

Brazil was a founding ratifier of the Paris Convention and is also a signatory country to the WTO agreements, PCT, and TRIPs Agreement (although it has not concluded entry into the Madrid Protocol).

In order to protect intellectual property within its territory, Brazil has established an Industrial Property Law. Under this, rights for patents (including utility models), industrial designs, and marks can be acquired in Brazil. The Industrial Property Act has many points in common with Japan’s intellectual property laws and should be easy to comprehend.

Table 1 indicates items common to all forms of intellectual property protection. There are many items similar to Japan’s, but one large difference is that Brazil uses an examination system for utility models and does not use an examination system for designs.

Table 1.

An overview of the Brazil patent application subject to the Industrial Property Law, from the application to the acquisition of a patent, follows.

Inventions are not considered if they mathematical methods, abstract conceptions, human arrangements, computer programs per se, surgical techniques and methods, biological material isolated from organisms’ genomes or other components, and/or biological substances. (In other words, things [including pharmaceutical products], methods, and production methods beside those listed above may be awarded patents.) (Articles 10 and 18)

Unlike in Japan, one should note, a computer program per se cannot be patented in Brazil. However, computer-related inventions (including inventions that use computer programs) may be given protection.

A utility model is something or part of something with “practical use” that takes the form or structure of material goods (Article 9).

In order to protect an improvement or development pertaining to one’s invention application or patented invention, the applicant may apply for a Certificate of Addition of Invention (Articles 76, 77).

A Certificate of Addition of Invention does not need to meet a requirement for inventive step in order to be registered, but the addition must be included as having the same “inventive concept” as the original invention.

Brazil has in place systems for accepting direct applications, PCT international applications, and applications in a foreign language (Brazil Patent Regulations 4.3.1).

Upon application, the applicant may claim priority under the Paris Convention (Industrial Property Law Article 16).

The applicant may file a divided application (Article 26).

The following documents are included in a patent application:

Request, specifications, claims, any necessary drawings, abstract (Article 19).

Also, when filing an application for a utility model patent, a drawing is required (Brazil Patent Regulations 4.3).

The specifications must be written in Portuguese. Therefore, even if applying directly in Brazil or filing for a national phase application with a PCT international application, the applicant needs to send English specifications and other documentation to the local representative early.

A patent application is published after eighteen months have elapsed since application (Industrial Property Law Article 30). Also, there is a system allowing requests for early publication (Article 30).

Unlike in Japan, one should note, even patent applications that have been withdrawn or abandoned must be published (Article 29).

Brazil has a system requiring the applicant to request examination, as Japan does. In order to have a patent application for an invention examined, the applicant must file a request for examination within 36 months of the filing of the application (Article 33). If there is no request for examination, the application finally will be deemed withdrawn.

However, if the applicant files a request for examination within sixty days after the Patent Office dismissed the application as invalid (after the 36 months since filing have passed), the dismissal can be revoked.

As in Japan, Brazil requires a patent to meet requirements of novelty, inventive step, and industrial application (Articles 8, 9, 11, 13-15) and to avoid reasons for non-patentability (Articles 10, 18).

Newness and the “State of the Art” (Article 11 [2])

Even if an invention described in a patent application is filed before the publication of a previous application describing that invention, that invention will not be awarded a patent (novelty with regard to the state of the art). In other words, the applicant must be careful because Brazil, unlike Japan, does not have a remedial provision for when the previous application comes from the same inventor or applicant as the later application (Japan Patent Law Article 29 [2]).

During the process of examination, the applicant may be required to submit translations of the claims included in the relevant documents of the parent application. The deadline for submission is normally 60 days from the request (Brazil Patent Regulations 7.1).

However, a statement by the applicant that the relevant documents of the Brazil application are fully contained in the parent application may replace the above submission.

12 months are given for exceptions to lack of novelty—a longer period than in Japan (Industrial Property Law Article 12).

The applicant must pay the fees within 60 days of the Brazil Patent Office’s approval of the patent application (Article 38).

However, even if the applicant has not paid within those 60 days, the Patent Office will accept late payment if the applicant pays an additional fee.

As in Japan, it is possible to apply for registration of trademarks comprised of letters, figures or symbols, as well as mixed trademarks and three-dimensional trademarks.

In addition to regular applications, it is possible to file an application claiming a priority right under the Paris Convention (Rule 1.1.1)

No system for multi-class applications exists.

No systems for publication before examination or for requesting examination exist.

The following cannot be registered: crests of foreign countries or international organizations, etc.; trademarks which do not possess distinctiveness; trademarks which contravene public order and morality; trademarks related to geographical indications; trademarks registered by others. The reasons for unregistrability in these cases are similar to those in Japan (Industrial Property Law, Article 124).

A system for opposition proceedings exists. Opposition may be declared within sixty days from publication before trademark right is granted.

A system for invalidation trials exists. A lawsuit may be filed within five years from the date of the registration.

A system for cancellation due to non-use exists. It is possible to file a request after five years have elapsed following the date of registration.

http://www.inpi.gov.br/

http://www.jpo.go.jp/shiryou/s_sonota/fips/brazil/ipl/mokuji.htm