The Proposal of the Brazilian patent office for the backlog solution: An unconstitutional proposition

It is notorious that there is an efficiency crisis in the Brazilian patent system, unable to meet society\u27s demand for a faster patent examination. The INPI takes about 11 years to concede a patent. There are 231.184 pending patent applications, and in June of 2017 it promoted a public consultation proposing an infra-legal norm that allows the granting of patents without substantive examination in the country, the so-called simplified procedure of granting of patent applications. Currently, the Brazilian government recognizes that it does not have the structure to make the substantive examination of all pending patent applications. This article aims to analyze not only the legality but the very constitutionality of the proposal under examination. After analyzing the Constitution of the Federative Republic of Brazil and also the national legislation, it was concluded that it is not possible to grant patents without substantive examination in Brazil. In search of solution for INPI backlog, it should be based on the social interest and the technological development of the country, and this is not the case of the proposal commented in this paper

Utility Model Patent Protection Scenario in Brazil and the Indication Of Excessive Rigor in the Inventive Examination

Studies on utility model patents have shown this as an alternative for rapid patent protection that contributes to promoting the country\u27s economic development. Therefore, this research aims to propose a study of the utility model patent in the national patent system, aiming to know if this type of protection has served the purpose of innovative and technological evolution verified in countries with developing economies similar to Brazil. Regarding the methodology, this study is characterized by a quantitative exploratory study that was divided into two phases. The first phase was a bibliographic research related to utility model and the second phase was the analysis of applications for patents of invention and utility model. The results show that there is a greater amount of invention patent filings than utility model patent filings between 2000 and 2019. Also, it was noted that there is a significant decrease in the share of the utility model in the total of analyzed filings, as well as the PI deferral rate is higher than that of the MU in most of the cataloged years. As for the literature and jurisprudence analyzed, it was noticed that the inventive level required for the utility model patent is of lower intensity than that required for invention patents. Therefore, an accurate and objective definition of the inventive act requirement is suggested, in order to distinguish it precisely from the inventive step requirement, in order to speed up the analysis process and increase the demand for utility model patent filings

Social cost of pending the patent examination in Brazil: An analysis of the deleteric effects of the sole paragraph of Art. 40 of law No. 9.279/96 in the post-patent segment

In Brazil, the general rule is that the invention patent has a duration of 20 years and that of a utility model, 15 years, counted from the filing date of the patent application. However, if the examination of a patent of invention or utility model is not completed within 10 or 8 years, respectively, the sole paragraph of art. 40 of Law nº 9,279/96 - Industrial Property Law (LPI) determines a differentiated methodology for the calculation of the validity of the right. The standard in question provides that, in this case, the patent will be valid for at least ten years in the case of IP and seven years in the case of MU, counting from the date of the granting of patent (and not the file). The present paper deals with the problematic involved in the extension of the term of validity of patent in the hypothesis of administrative slowness of Brazilian Office (INPI) in the appraisal of the application. As the vast majority of patents are granted using the benefit provided in the sole paragraph of art. 40 of the LPI, it will be analyzed the social cost of the automatic extension of the term of validity of the patent in the post-patent segment (pharmaceuticals and agricultural pesticides). It was found that the accumulated loss of the public coffers only taking into account nine medicines purchased by public health system (SUS) in regular centralized purchases up to January 2016 was over R$2 billion. As for agricultural pesticides, there was an annual cost of approximately R$ 318 million for the group of eight patents that were extended with the application of the legal safeguard