It takes more than 11 years for a patent application to be reviewed in Brazil – far longer than in other countries with a similar application-to-examiner ratio. In order to address this dire situation, the Brazilian Patent and Trademark Office (BRPTO) considered a fast-tracking proposal last year that would automatically grant all eligible pending applications, as reported.
However, the proposal has since lost momentum. An anonymous source close to the situation attributes the circumstance to “some NGOs and industry associations that are basically against pharmaceutical patents, like ABIFINA, [which represents] pharmaceutical generic companies.”
Although pharmaceutical patents would not have been eligible for the proposed fast-track process, the anonymous source says generics were motivated to disrupt the system anyway because “[t]hey want the chaos; they want the patent backlog increasing and increasing. They don't want the patent system to work in Brazil. It may sound crazy, but that's the way it is.”
Other organisations that the source claims have worked to stop the fast-track procedure include ABIA – a group that advocates for AIDS prevention and treatment – and AFINPI, an association of patent examiners, whose constituents make up about 10% of the total examiners at the BRPTO.
The anonymous source explains: “They are very vocal; they sent warning letters against the Brazilian PTO, and [the BRPTO] got somewhat scared … [These groups] protest in front of the PTO, they threaten with litigation. Why are they so opposed? The examiners want the chaos because they want a pay raise.”
These groups claim that the fast-track process is illegal, to which the source says: “They have a point.” There were some rumours that the president would sign an executive order to amend the law, but it seems unlikely this will occur before the general election in October.
Another solution to the backlog that was considered last year was a revalidation procedure, in which the approval of patents which had already been examined abroad could be fast-tracked in Brazil. However, Gustavo de Freitas Morais, partner at Dannemann, says this strategy is “100% against the law. [The law] would need open heart surgery.”
There are less extreme programmes available that would expedite certain kinds of applications, but Morais says these are rarely taken advantage of. “Maybe it’s because of Article 40, through which a Brazilian patent has a term of 10 years from grant. Some companies are not really worried about the delay because they know that when their patent is granted, they will have 10 years from the grant.” This is in contrast to processes in countries like the US in which patent validity begins retroactively on the application date, so programmes that cut down time between application and approval are much more important.
A measure already in place includes a programme in which the BRPTO asks applicants to provide any prior art documents from abroad and amend their applications to comply with the requirements in Brazil. If applicants do not respond to this simple request, their applications are considered abandoned.
The programme began early this year. So far, Morais says, “around 25% of applicants have not responded to this objection, so 25% of the applications covered by this programme have been considered abandoned. It's a good way of reducing the backlog.”
The final realistic way the backlog will be reduced is through simple hard work. The BRPTO has not added a significant number of examiners to its roster, but individual productivity at the office has increased over the past few years, despite the 10% of examiners involved in protests. Under BRPTO president Luiz Otávio Pimentel’s leadership, the number of weekly processed applications has jumped from a couple dozen to hundreds and sometimes thousands.
Morais explains Pimentel’s method: “He had a slow start. For about one year, he used to say to everybody: 'I'm learning. I'm just studying this office.' We've then seen practical changes over the last three years.” Apparently these practical changes have worked very well; with the current rate of productivity, Morais estimates that the application processing time will be cut down from more than a decade to a more reasonable waiting period of five years in just about 10 years.
Regarding the best way to reduce the backlog going forward, Morais says: “The main thing to do is it to try to keep this president here. Some associations and stakeholders – pharma, ABBI (Brazilian Industrial Biotech Association), lots of liberal companies – are really fighting to try to keep Mr Pimentel on the job for the next year.” Despite this lobby for Pimentel, his position is likely to be turned over as a result of the upcoming election. It is customary for the new president of Brazil to appoint a new minister of industry and commerce, who in turn appoints a new president of the BRPTO.
Who might come into power, and what might their stance be on the BRPTO? “We are caught between a rock and a hard place,” says Morais. “On the left,” he explains, “there's a more organic dislike for any kind of property, especially intellectual property, so it would not be surprising if they don't support the Brazilian PTO.
“On the other hand, parties on the right should be more in favour of the Brazilian PTO, but they tend to be very nationalistic and pay more attention to national companies. And in general, national companies don't care much about IP. Some of them say go so far as to say that IP is only in multinational companies' interests.”
Whichever party is elected in October, Morais says it would be ideal if they didn’t care about IP at all, and “left IP to its own devices…In general, those political guys are horrible and make a mess. The backlog would continue to increase and I'd have to retire early.”
