The BRPTO published on May 09, 2023 the final version of Technical Note BRPTO/CPAPD #01/2023 – which provides guidelines on the examination of inventions related to transgenic plants, particularly, elite events – to its website, as a result of Public Consultation #01/2022.
To summarize, said Technical Note now states that:
- article 18 (III) of the Brazilian Patent Statute (Law #9,279/96) does not refer to restrictions on the patentability of biological materials (isolated or not), since said article is only directed to the patentability of the whole or part of living beings. Therefore, biological materials different from those found in nature or isolated therefrom are patentable.
- Biological material, such as DNA molecule, should be characterized by its corresponding SEQ ID NO:, provided that said SEQ ID NO refers to the junction sequence of insert/genome. Unlike the original text that was under public consultation, there is no need for the expression “isolated” in the claim wording.
- The filing of a biological material at a Biological Material Depository Center is necessary to allow its reproducibility (meeting the provisions of article 24 of the Brazilian Patent Statute) if the claimed matter was obtained by a process which reproduction involved randomness at the time of filing or priority. However, the filing at a Biological Material Depository Center is not required if the claimed matter could be reproduced at the filing date/priority only from its sequence.
The Technical Note is immediately applicable as a guideline in the examination of pending applications, including those in the appellate level.
The final version of the Technical Note is available here. If you are interested in receiving an English version thereof or further information on this matter, please contact us at patents@lickslegal.com. We will be glad to assist you.
