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Phase II of fast-track examination modalities for patent applications in Brazil

As part of the continuous efforts to reduce the backlog of pending patent applications, the Brazilian Patent and Trademark Office (BRPTO) has published on last December 21, in the Industrial Property Gazette 2659, the Ordinance Number 053/2021 that regulates the phase II of fast-track routes for patent applications whose claimed matter attends to the following main conditions:.

(1) the claimed matter is resulted from direct public funding aiming to develop the related technology; and

(2) the claimed matter relates either entirely or partially to a technology which has been already exploited in the Brazilian market.

The following main rules for an application to qualify for these modalities of fast-track examination remain as:

a) The application must have been already published or have the request for anticipated publication duly filed;

b) it is necessary to collect the fee related to the regular technical examination;

c) for the fast-track request of applications whose claimed matter resulted from direct public funding aiming to develop the technology, it is necessary to submit the copy of the document which proves the remittance of the funding for the developments of the invention;

d) for the fast-track request of applications whose claims relates either entirely or partially to a technology which has been already exploited in the Brazilian market, it is necessary to submit the copy of the document which proves that the technology has been licensed, offered for sale, imported or exported;

e) only a single fast-track examination request per applicant will be allowed within each weekly cycle;

f) up to 100 fast-track examination requests per each IPC (International Patent Classification) section will be allowed within each annual cycle; and

g) up to 400 fast-track examination requests in total will be accepted per each annual cycle.

It is important to have in mind that if the technical examination of the patent application is already being conducted, it will not be possible to qualify for the fast-track examination in Brazil. In addition, the granting of the fast-track examination of a Brazilian patent application does not characterize the automatic grant of the patent, since the BRPTO will carry out its examination pursuant to the Brazilian legislation.

This Ordinance will enter into force as from January 1, 2022 and the BPTO will accept the fast-track requests under these modalities until December 31, 2023.

For any further clarification, please feel free to contact us at brj@clarkemodet.com.

Rafael Freire