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Resolution regulating procedures for entry of the Brazilian national phase, under the terms of the PCT, outside the 30 month time limit.

Resolution No. 254/2010 of 13 July 2010 (which cancelled Resolution 212/2009 of 14/05/2009) regulated procedures for entry into the national phase of international patent applications filed under the terms of the Patents Cooperation Treaty (PCT), together with the Brazilian National Institute of Intellectual Property (INPI), as Designated Office, outside the time limit provided for in article 22 of the Treaty.
The Applicant of an international patent, filed under the terms of the PCT, which, due to unforeseen circumstances or force majeure failed to enter the application in the national phase, with the application filed before the INPI, within the time limit of 30 (thirty) months may make a request, including documentation which verifies the unforeseen circumstances or force majeure affecting the filing of the patent application.

The time limit for entry into the national phase, together with into the INPI, is 2 (two) months, counting from the end date of the reason which led to failure to meet the time limit provided for in article 22 of the PCT, or 12 (twelve) months counting from the expiration date of the time limit provided for in the same article of the PCT, whichever expires first.

After the request for entry into the international phase of the international patent application after the time limit provided for in article 22 of the PCT, it will be examined, and if properly documented and if the events which characterise the unforeseen circumstances of force majeure or alleged by the Applicant have been verified, the request will be granted by the INPI leading to the national phase of the patent Application.

When the request for entry into the national phase of the international patent application after the time limit provided for in article 22 of the PCT is not duly documented or the events which characterise the unforeseen circumstances or force majeure alleged by the Applicant have not been properly verified, the request shall be rejected and entry into the national phase of the patents application will not be allowed.

It will be possible to appeal against the decision to reject the request allowing entry into the national phase of the patent application in a period of 60 (sixty) days counting from publication date of the INPI’s decision.

The INPI has repeatedly shown itself to be fairly strict in examination of the reasons presented by the Applicants to justify filing outside the 30 month time limit. The only legitimate reasons that can be considered are events such as Earthquake, Blizzard, Fire, Flood, Lack of Electricity, Postal Strikes and Loss of correspondence. In these circumstances, the chances of success for approval of the request are high.

Carmen Sánchez-Puelles