Although the BRPTO forecasts an increase in the number of patent applications filed during the next few years, the most probable scenario is that these figures will remain stable, based on data for the past five years (2011 – 2015). During this period, patent applications rose by a mere 3.6% a year, and even fell during 2014 and 2015.
The scenario shown in Graph 2 (see page 6) is lagging behind other countries. At the global level, patent applications filed rose 24% a year between 2011 and 2014 (2015 data is not yet available), while Brazil posted a modest growth of 4.08% in annual patent applications filed during this period, lower than the filings growth rate for even Latin America and the Caribbean at 6.47% as a whole.
These data reflect low interest levels in Brazil for the international community, resulting in a context that is consequently somewhat unfavorable for innovation and competitiveness.
The number of new patent applications filed in Brazil has remained relatively constant, with a low growth rate. Nevertheless, the BRPTO backlog has been ballooning at frightening speed: the number of applications filed rose by only 3.6% between 2011 and 2015, while the BRPTO backlog soared by 28.43%.
This huge backlog of patent applications filed with the BRPTO means that their processing times are far longer than reasonable. The average lead-time for a decision on a patent application is more than eleven years. In some fields of technology, the situation is even worse: decisions on telecommunications patents may take more than fourteen years. Some 30,000 new patent applications are filed in Brazil each year, reaching 33,043 in 2015.
These delays at the BRPTO are even more worrying, when compared with peer authorities in other countries. The European Patent Office (EPO) takes around three years to decide on a patent application, while the US Patents and Trademarks Office (USPTO) requires some two and a half years; in China, SIPO awards patents within less than two years on average, dropping to less than eighteen months for the Japanese (JPO) and South Korean (KIPO) authorities to complete the procedures for examining a patent application.2
Even patent offices from countries with development indexes closer to Brazil’s are more productive and in turn have a smaller backlog. For example, the Indian Patent Office (IPO) is more efficient, although its situation is not that much better: more than 40,000 patent applications are filed each year, with final technical decisions handed down on around 14,000 applications a year. In 2015, the Indian Patent Office was staffed by 183 industrial design and patent examiners,3 indicating that the average annual productivity of each examiner is 76 examination decisions a year or six decisions a month – twice the average figures for Brazilian examiners.By the end of 2015, the backlog in India reached 246,495 patent applications.4 Although higher than the figures for Brazil, some 10,000 more patent applications are filed each year (42,763 compared to 33,043 in 2015) with fewer examiners (183 compared to 193 in 2015).
The Indian authorities are well aware that the efficiency of its IPO must be improved, taking steps designed to shorten paperwork processing times. One of these steps is the adoption of bilateral cooperation agreements with other patent offices such as the EPO and the JPO.
In turn, some 40,000 patent applications are filed on average each year with the Russian Federal Service for Intellectual Property (ROSPATENT), topping 45,000 in 2015, with more than 30,000 substantial decisions handed down each year either granting or refusing applications for patents of invention. There are no official data on the average processing times for patent applications in Russia, but since 2009, it has pursued a bilateral cooperation agreement program with twenty other patent offices.5
In Latin America, Colombia takes only 22 months to decide on a patent application,6 while Argentina should be even faster after the fast-track alterations introduced by Rule P-56/2016, on September 19, 2016.
Brazil’s 1988 Constitution offers assurance at the Judicial and Civil Service levels that the time required by these procedures will be reasonable (Article 5, Item LXXVIII). There is no legislation in Brazil that allows an average duration of eleven years for examining and administrative procedure. In addition to being out of step with the practice in other countries, the performance of the BRPTO also fails to keep pace with (and correspond to) an efficient Civil Service model whose implementation is underway in Brazil, compliant with the principle set forth in the Head Paragraph of Article 37 of this Constitution.