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PPH - Suggestions for Fine-Tuning the Brazilian Patent-granting System

pph - Suggestions

Brazil is currently in an economic crunch, as foreign investments are plummeting, down from US$ 97 billion in 2014 to US$ 75 billion in 2015, and estimated at only US$ 60 billion in 2016.9 A return to economic growth across the board requires a domestic context that is favorable to foreign investments, with an important indicator of this situation being an efficient patents system that rewards and protects innovation.

The Brazilian government must seek ways of streamlining management of the public machine while avoiding an upsurge in outlays, ensuring better cost x benefit ratios. However, the need to rationalize spending means that stepping up federal investments in restructuring the BRPTO will be hampered. Hiring more examiners and pumping up its payroll is not a step for the immediate future – and there is in fact little point in hiring more examiners if their productivity rates are not improved.

Nevertheless, there are some excellent options that could be pursued in order to improve this situation with the lowest possible levels of public spending.

The first alternative, which is being implemented with great success in other countries, as well as Brazil – is the expansion of the Patent Prosecution Highway (PPH).

Another alternative that would supplement the PPH is to adopt a fast-track system similar to that of Argentina, recently introduced through Rule P-56/2016. This solution could be adopted in Brazil through a simple Rule or Directive that would allow local patent examiners to use work already undertaken in other countries to an even greater extent than under the PPH. Through this approach, the system would focus on the main stumbling block causing delays in patent application examinations: while the PPH addresses applications that are still pending in patent offices all over the world in order to shorten processing periods (pendency) through exchanging information with several countries at the same time, a Rule or Directive as described here would also encompass patent applications on which decisions on merit have already been handed down in most of the other countries, thus reducing the backlog as its main purpose. Lower pendency rates in countries with considerable backlogs would also result from resolving this problem.

Through Rule P-56/2016, Argentina has shown an accurate understanding of how patent systems work, well aware of the importance of establishing a context of innovation in order to drive economic growth. In fact, this Argentine Rule is not dissimilar to Directive #152/99, promulgated in Brazil by the BRPTO in 1999, which rules on the presentation of a copy of the patent corresponding to the Brazilian application that was awarded in another country, as input for the examination to be undertaken by the Brazilian examiner.  Unfortunately, Brazil failed to forge ahead with its patent system, as Argentina has done through its new Rule P-56/2016. The risk for Brazil is that it will lose technologies and innovation to the Argentine market.