The PPH seems to be the ideal solution for two (or more) countries whose patent offices are already operating with reasonable efficiency and that can effectively engage in bilateral cooperation in order to shorten patent application processing times for both of them (pendency).
However, as the BRPTO does not generate information within a reasonable timeframe, when it completes a prior filings search for a patent application, other offices have completed their examinations of the merit of the corresponding application long before. This is why, in addition to considering further PPH agreements, the BRPTO must also urgently solve the problem of its massive backlog. To do so, the best approach for Brazil would be to promulgate a Rule or a Directive similar to Rule P-56/2016 that was recently adopted in Argentina.
In the past, the BRPTO issued a Directive that allowed applicants filing patent applications to present copies of corresponding patents awarded by other patent offices, for use as additional information for the examination in Brazil. This was Directive #152/99.
In Argentina, Rule P-56/2016 adopted an innovative approach that empowered the Argentine Patent Office to confirm that patentability requirements have been met and the prior filings search had been conducted when the priority invoked through the Argentine patent application had been granted in another country that conducted an examination of merit and required compliance with the same patentability requirements as those in place in Argentina.
This new Rule can help upgrade Argentina’s patent system effectively, without undermining its national sovereignty. This is deployed by the Legislative when a law is promulgated that lays down the requirements for awarding patents – a bound act undertaken by the Civil Service through ascertaining compliance with these requirements and leaving no room for a judgement of convenience and opportunity. Thus, respect for national sovereignty is present insofar as Rule P-56/2016 clearly states that foreign patents may be used for patent applications examinations in Argentina only after completing an examination of merit that ascertains the presence of the same patentability requirements as established in Argentine Law.
Furthermore, this Rule stipulates that the Argentine Patent Office may waive this practice with technical and legal grounds, or for reasons of national defense, domestic security, public health emergency or other reasons related to the public order.
Promulgating a Rule and/or a Directive that could compete with Argentina’s Rule P-56/2016 would be the solution for the BRPTO backlog problem. This would allow Brazilian examiners not only to benefit from prior filing searches conducted by other offices, but also the outcomes of examinations of merit, which may be reviewed and, when pertinent, adopted as grounds for granting or rejecting patent applications. This step would not curtail the autonomy and independence of Brazilian examiners, but would rather endow them with a new tool that could revolutionize the efficiency of the BRPTO. For this purpose, it is relevant to note that Brazil is a signatory of the Trade-Related Intellectual Property Rights (TRIPS) Agreement (embedded in Brazil's juridical arrangements through Decree Nº 1,355/94) that standardized the patentability requirements adopted by its member countries. This means that Brazilian examiners inevitably check the same criteria as those analyzed by foreign examiners. In this context, there is no justification for claiming that the use of the findings of examinations of merit conducted by other patent offices with regulatory structures that are identical to that of Brazil, could harm national sovereignty in some way. This type of statement is not acceptable to all those who believe in the need for a modern and efficient BRPTO that can pave the way to a context of innovation and cutting-edge investments.