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Brazil: New Phase of Patent Prosecution Highway (PPH)

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3 de janeiro de 2023

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The Brazilian Patent Office (BPO) published on December 27, 2022 the extension of the pilot program related to patents, known as Patent Prosecution Highway – PPH.

Pursuant to the program, a Brazilian patent application may be eligible to undergo through PPH examination if the following requirements – among others – are met:

There must have been a decision to grant issued by a foreign authority associated with the BPO in connection with the same family of patent (currently the following authorities have agreements in force: Austria, China, Denmark, Europe, France, Japan, Portugal, Spain, Singapore, South Korea, Sweden, United Kingdom and United States); or a favorable International Preliminary Report on Patentability (IPRP) issued in connection with a correspondent PCT application;

The Brazilian application must claim subject matter equal to or more restrict than that allowed by the foreign authority;

The program will be effective until December 31, 2025 or a total of 800 requests have been filed – whichever occurs first – or, in case of IPRP, a total of 100 requests have been filed;

There are other limitations that apply, e.g., only one request per applicant may be filed per week, and a limit of 250 requests per year per category of the International Classification.

It is known that the BPO has been dealing with a huge backlog of cases for many years. However, several measures have been effectively taken in order to accelerate the examination of applications, which resulted in the decrease of the backlog from approximately 140,000 cases to 11,871 in the past three years (last update December 28, 2022).

In this sense, the PPH program has proven to be extremely successful, since it usually takes to the BPO approximately 150 days to issue a first examination on PPH requests, instead of the regular average of 4 years.

There are other ways for requesting an expedite examination of a patent application, such as (1) if the pending application is being infringed by a third party in Brazil; (2) if the subject matter of the application refers to treatment of Covid-19; (3) if the subject matter of the application refers to green technologies; among others.

Our Intellectual Property team is available to assist and clarify any doubts you may by e-mail pi@smabr.com or by phone +55 (11) 3146-2400.

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