On July 3, 2019, the Brazilian Ministry of Economy and the National Institute of Industrial Property (INPI) announced an urgent program to reduce the patent examination backlog in 80% by the end of 2021. The INPI estimates that there are currently 160.000 patent applications awaiting an examination decision in Brazil.
As part of the new program, two new resolutions were published in the Brazilian Official Gazette No. 2531 of July 9, 2019: Resolution No. 240 and Resolution No. 241. These new resolutions replace former Resolution No. 227 of October 25, 2018, which instated the issuance of “pre-examination office actions”.
Resolution No. 240 is directed to those patent applications that do not have search reports issued by other Patent Offices, while Resolution No. 241 is directed to those applications for which search reports have already been issued by other Patent Offices.
Under Resolution No. 240, the BPTO will proceed as follows:
– a preliminary office action will be issued with (a) a search report with relevant prior art detected by the Brazilian examiner and (b) a requirement for the applicant to submit appropriate amendments and/or technical arguments on the patentability of the invention over the cited prior art documents;
– the applicant must file a response to the preliminary office action within 90 days from the publication thereof under penalty of the application being definitively ordered abandoned;
– once a response is duly filed, the BPTO will proceed with the substantive examination of the application without performing additional prior art searches (that is, the examination will consider only the prior art documents cited in the preliminary office action).
Under Resolution No. 241, the BPTO will proceed as follows:
– A preliminary office action will be issued with (a) a search report limited to the prior art cited in the searches carried out by other Patent Offices/International Offices/Regional Offices and (b) a requirement for the applicant to submit amendments and/or technical arguments defending the patentability of the invention over the cited prior art;
– The applicant must file a response to the preliminary office action within 90 days from the publication thereof under penalty of the application being definitively ordered abandoned;
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– Once a response is duly filed, the BPTO will proceed with the substantive examination of the application without performing additional prior art searches;
– If the response to the preliminary office action does not include a set of claims adequate to the cited prior art or technical arguments regarding the patentability requirements, the application will be rejected, with the right to appeal.
Preliminary office actions under Resolution No. 240 and Resolution No, 241 will be published as of July 23, 2019, and August 6, 2019, respectively.
The new procedures will not apply to applications that already received a first examination report; applications with a request for priority examination; applications for which third party or ANVISA observations were submitted; e patent applications filed after December 31, 2016. Please note that if a parent application falls within these exclusions, the new procedures will not apply to the applications that are divisions thereof.
For those who are already familiar with the “pre-examination office actions” issued under the former resolution, please note that the main differences of the new procedures are as follows:
– the lack of response to the preliminary office actions will result on the patent application being definitively ordered abandoned, with no possibility of reinstatement;
– the deadline for replying to the preliminary office actions is 90 days counted from the publication thereof;
– the substantive technical examination performed after the reply to the preliminary office action should consider only the prior art documents cited in the preliminary office action; and
– for those patent applications where the preliminary office action is based on prior art cited by other Patent Offices/International Offices/Regional Offices (Resolution No. 241), failure to amend the claims and/ or submit technical arguments to overcome the cited prior art will result in the rejection of the application, with the right to appeal.