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Brazilian PPH with the DKPTO: new opportunities available under Rule #223/2018

August 21, 2018

(BRPTO’s gazette of August 21st, 2018)

The BRPTO published on August 21st, 2018, Rule #223/2018 implementing the PPH Pilot program with the DKPTO, which might speed up the examination of pending Brazilian applications with an application from the same family for which a “Grant” decision has been issued by the DKPTO.

The Program will accept applications belonging to patent families whose earliest application has been filed at the BRPTO or the DKPTO or, in case of a PCT application, with no priority claim, the BRPTO or the DKPTO was the receiving office.

To be eligible for this PPH program, the application must be related to “Engineering”, “Lighting”, “Heating”, “Weapons” and “Explosives”, except for drug-related applications which are not encompassed by this program. The application must also be specifically classified under the IPC codes listed in the table below to be accepted. Applications classified under any of the groups of A61K subclass, even if A61K is a secondary classification, are also excluded from the program. The table below summarizes the International Patent Classifications accepted by this program:

table

Observation: # encompasses all subcategories within the indicated classification.

To be accepted in BRPTO-DKPTO PPH Pilot Program, the Brazilian application must:

• have been filed in Brazil for more the 18 (eighteen months) or have a request for anticipated publication submitted to the BRPTO, as provided for in article 30 ¶1 of the Brazilian Patent Statute;
• have its request for examination submitted to the BRPTO; and
• have not been accepted in any other fast-track examination program.

Divisional applications and their corresponding original application might be eligible for this program as long as the PPH is requested for all applications, independently.

The participation of the application in the BRPTO-DKPTO PPH Pilot Program shall be requested by any or all the applicants via a specific electronic form. Amongst other documents requested by Rule #223/2018, the applicant must submit, together with the request (1) documents proving that the application meets the above-mentioned requirements; (2) a table including the correspondences between the BR application claims and granted claims by DKPTO and (3) a copy of non-patent literature considered as prior art by the DKPTO. The documents must be translated into Portuguese, English or Spanish, in case it is not in one of those languages.

The BRPTO shall annul the participation of an application in the PPH program if the applicant voluntarily i) divides the application or ii) submits amendments before the issuance of the first BRPTO’s technical opinion.

The BRPTO will evaluate the applications for PPH according to its request date. Applications that do not meet the requirements will either (1) be given the opportunity to correct any irregularity, case in which the BRPTO will issue an office action to be replied to within 60 days, or (2) have its participation in the PPH Pilot Program denied. The applicant may file an appeal against the decision denying participation in the PPH within 60 days from its notification, as long as all documents and information required for the request have been duly submitted with the participation request brief and the brief has been submitted within the legal term.

The program will be limited to 100 applications per year (total of 200 applications) and the participation into the program is limited to 1 (one) application per applicant per calendar month- period, except in the last month of the program, when such limitation shall not be applied.

Requests for participating into PPH Pilot program with the DKPTO will be accepted from September 1st, 2018 until August 31st, 2020 and this Rule will be in force until all accepted applications reach a final decision.

The original Portuguese version of Rule #223/2018 is available here. Please contact us for its English version.