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Getting a Patent in Brazil

The Brazil Business

Updated

16 October 2013

This article will give you the basic information on how to issue a patent in Brazil.

Background

The adoption of an Intellectual Property policy in Brazil begun in the 1940s as an attempt to foster local industrialization. Intellectual property rights were seen as a legal and economic instrument to promote the development of the internal market.

In Brazil, intellectual property matters are administrated by INPI, Portuguese for the National Institute of Industrial Property. This is the organization in charge of registering patents and trademarks.

How does it works?

In Brazil, property right is understood as the rights the inventor has on the intellectual creation. It gives the inventor the right to exploit that intellectual creation exclusively in Brazil, for the period of 15 years. The industrial Property Law gives the inventors the right to carry out lawsuits over those who make who use the patent without authorization.

The Industrial Property Law also regulates that the right over that invention is given to whomever claims the patent first, so to a certain extent, what is really considered is not who really created the invention, but who first required the patent from INPI.

What is Protected in Brazil?

Here are the creations that can be patented in Brazil:

Patent of inventions and utility model patents
Plant variety certificates
Industrial design registration
Protection of Semiconductors
Trademark registration
Repression of false geographical indications
The repression of unfair competition covering layout of labels and packages and trade secret
Copyrights on literary, artistic and scientific works, including aesthetic design and patterns
Domain Names
Data Exclusivity

How to issue

The first step is to identify whether your creation is patentable. A patentable creation must be an invention or utility model. For invention is understood any technological development originating from human intellect; an utility model is any change made to an object of practical use which makes it present a new shape and results in a functional improvement of its use or manufacturing.

So to that extent, discoveries, scientific theories, methods of accounting, financial or educational nature, literary, architectural and artistic works, game rules and so forth.

The next step is to check whether your creation has not been registered yet. This research can be done by a specialized agent or by the lawyer who's in charge of registering your patent. Have in mind that Brazil operates under the “first-to-file” regime, so who is going to own the rights of that patent is whomever registers it first and not necessarily who has created it.

You can also check the availability of a trademark or patent through INPI portal. Be aware that all information is in Portuguese.

Before applying for a patent, one must gather the following documents:

The request
Specifications
Claims
Drawing (if necessary)
Abstract
Proof that the filing fee has been paid

A particularity in Brazil is how long the process takes. In Europe

Costs

INPI charges several fees in order to issue a patent. These fees vary according to what exactly is being requested, but the following ones are basic and costs are different for private people and legal entities, respectively:

Deposit fee: from BRL 55,00 to BRL 140,00
Invention analysis: from BRL 160,00 to BRL 400,00
Utility model analysis: from BRL 110,20 to BRL 280,00
Issuance of the patent letter: from BRL 40,00 to BRL 95,00

The process of issuing a patent is very complex and INPI does not offer any support regarding the preparation of all required documents, so the recommendation is to hire an attorney or properly registered agent specialized in industrial property.

It is important to say, however, that hiring a lawyer to take care of the process for you may increase the costs up to 165%.

Also, once your patent has been issued, you will have to pay annual costs that vary according to the kind of patent or trademark you have and the non-payment of this annual costs will result on the loss of your rights over that creation.

Current Status in Brazil

Currently, the process of issuing a patent in Brazil takes from five to eight years. Every year Brazil receives an average of 26 thousand patent requests. Out of this amount, only 10% is granted. The majority of requests is concentrated in the Southeast and in the South, specially in states like São Paulo, Rio de Janeiro and Rio Grande do Sul.

INPI has got plans of reducing these eight years to four. Such an audacious plan would be supported by a modernization of the institute and the implementation of an online system that would make it possible to issue a patent online. This option is planned to be implemented between 2013 and 2015.