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The Brazilian PTO (BRPTO) publishes Rule #202/2017 implementing the Patent Prosecution Highway (PPH) Pilot Program with European Patent Office (EPO)

November 8, 2017

The BRPTO published on November 07, 2017, Rule #202/2017 implementing the PPH Pilot program with the EPO, which might speed up the examination of pending Brazilian applications with an application from the same family allowed by the EPO.

The Program will accept applications belonging to patent families whose earliest application has been filed at the BRPTO or the EPO or, in case of a PCT application, the BRPTO or EPO was the receiving office.
Applications in the chemistry field or related to technologies applied to medicine might be eligible for the program, with the exception of drug-related applications which are not encompassed by this program. The application must be classified under the IPC codes listed in the table below to be accepted. However, applications classified under any of the groups of A61K subclass, with the exception of group A61K 8, are also excluded from the program.

The table below summarizes the International Patent Classifications accepted by this program:

TECHNICAL AREA IPC CODE
Basic Chemistry A01N, A01P, C05#, C06#, C09B, C09C, C09D, C09F, C09G, C09H, C09J, C09K, C10B, C10C, C10F, C10G, C10H, C10J, C10K, C10L, C10M, C10N, C11B, C11C, C11D, C99Z
Organic and fine chemistry C07B, C07C, C07D, C07F, C07H, C07J, C40B, A61K81, A61Q
Polymeric and macromolecular chemistry C08B, C08C, C08F, C08G, C08H, C08L
Medical technologies A61B, A61C, A61D, A61F, A61G, A61H, A61J, A61L, A61M, A61N, H05G

1 – Applications classified under any other group of A61K subclass will not be accepted

To be accepted on the BRPTO-EPO PPH Pilot Program, the Brazilian application must:

i) Have the notification of filing or entry in Brazilian national phase duly published by the BRPTO Official gazette;
ii) Have already been published, including the international publication (when applicable);
iii) Have the corresponding request for examination duly submitted;
iv) Have all due annuity fees duly paid;
v) Not have the regular examination in course;
vi) Not have been accepted in any fast-track examination program;
vii) Not be involved in a lawsuit in Brazil; and
viii) Not be a division application, except when the division occurs from the original application an due to the allegation of lack of unity of invention.

The participation of the application in the BRPTO-EPO PPH Pilot Program shall be requested by any or all the applicants via a specific electronic form. Amongst other documents requested by Rule #202/2017, the applicant must submit, together with the request (1) documents proving that the application meets the requirements; (2) a table including the correspondences between the BR application claims and the EP allowed claims and (3) a copy of non-patentary prior art documents.

The BRPTO will evaluate the applications according to its request date, and applications that do not meet the requirements will either be given the opportunity to correct any irregularity, case in which the BRPTO will issue an office action which must be replied to within 60 days, or be denied participation in the PPH Pilot Program, case in which it will return to the regular line of examination. The applicant can file an appeal against the denial decision within 60 days from its notification.

The BRPTO-EPO PPH Pilot Program starts on December 01, 2017 and will receive applications for a period of 2 years. The project is limited to 600 applications accepted into the BRPTO-EPO PPH program over the next two years (limit of 300 accepted applications per year).

The original Portuguese version of Rule #202/2017 is available here.

The English version will be available soon.