What is a Patent?

It is an exclusive right granted for an invention, a product, or a process. It protects the right of the inventor. The invention to get patented must provide a new technical solution to the problem subsisting in the country. The application must include information about the invention, which is readily available to the public. 

What are the Benefits of having a Patent in Brazil?

Patent owners in Brazil is entitled to include to the following rights:

1. Right to property- Under Article 6 of the Industrial Property Law, the owner has the right to obtain the patent and exploit it. 
2. Right of exclusion- under Article 42 of Industrial Property Law, the owner has the right to prevent any third party from manufacturing, using, offering for sale, selling, or importing for such purposes.
3. Right to obtain compensation- Article 44 grants the right to the owner that the owner is entitled to compensation for unauthorized exploitation of the subject matter of the patent. It includes the exploitation that took place between the date of publication of the application and the date of grant of the patent. 

How to Apply for a Patent in Brazil?

The Brazilian Patent and Trademark Office is the government agency responsible for granting patents for inventions and utility models. The cost of applying for a patent is BRL 175, i.e., $45 approximately. 

The cost of requesting an examination of a patent application is BRL 590 ($150 approx.) for a patent containing up to 10 claims and BRL 380 ($95 approx.) for a utility model. 

Annuities within the ordinary term for an invention patent in Brazil:

1. When the application is pending, the cost is around BRL 295 (approximately $75).
2. Following the grant of a patent, from the third to the sixth year, the cost is BRL 780 (approximately $195).
3. When the patent is granted, then during the seventh to the tenth year, the cost is BRL 1,220 (approximately $305).
4. When the patent is granted, then during the 1st to 15th year, the cost is BRL 1,645 (approximately $410).
5. After the patent has been granted, during the 16th to 20th year, the cost is BRL 2,005 (approximately $500).

For a utility model patent in Brazil:

1. At the time the application is pending, the cost is BRL 200 (approximately $50).
2. When the application is pending, the cost for the third to the sixth year is BRL 405 (approximately $100).
3. When the application is pending, the cost for the seventh to the tenth year is BRL 805 (approximately $200).
4. When the application is granted, the cost for the 11th to 15th year will be BRL 1,210 (approximately $300).

The grant of a patent application (invention or utility model) will cost BRL 235 (approximately $60).

What do you need to do after getting your Patent in Brazil?

In case of any dispute or issue with the patent in Brazil, either party within 5 years can appeal against the final post-grant decisions of the BPTO to the federal courts. The application to prove the decision of BPTO as incorrect should be based on common grounds such as:Article 8- Lack of novelty, inventive step, or industrial application for an invention.

1. Article 24- lack of enablement- there is a lack of clear and sufficient description required to enable a person skilled in the art to carry out the invention.
2. Article 25- lack of support in the specifications as claims must be based on the specification, characterizing the particularities of the application and defining clearly and precisely the subject matter to be protected. 
3. Article 32- claim of amendments made after a request for examination that was not limited to the subject matter initially disclosed in the application. 

What are the Steps Leading up to Trial?

The plaintiff must serve the defendant with a cease or desist letter. Then the complaint is filed. After filing the complaint, the defendant will be directed to present their response within 15 days. The plaintiff must then reply to the defendant’s response within 10 days. 

Then a request is made for a preliminary injunction which must be considered within five days of the filing of the complaint. 

A conciliatory hearing also takes place where the trial judge listens to the deposition of the parties and their witnesses. The judge may require cross-examination of the court-appointed expert and parties’ technical assistants. 

Then the judge renders the final decision or orders the parties to submit their final briefs. The time limit of a decision given in the first instance is two to four years. 

What are the Remedies available for Patent Infringement in Brazil?

1. The infringement is ceased under daily fine penalty, search, and seizure under a preliminary injunction. 
2. The infringement is ceased by permanent injunction with the penalty of a daily fine. 
3. The products and materials which are infringing in nature will be seized or destroyed.  
4. They remove the products from the market which are infringing on nature. 
5. There are moral damages as well as lost profit. Damages can be claimed in both cases.

Conclusion

Thus, when you apply for a patent in Brazil, make sure that the invention meets the eligibility criteria such as novelty, inventive step and industrial application. If any invention is made by an employee which is made outside the contract of employment, the employee will be the owner of the patent right and not the employer. The ownership of a patent is recorded officially before the Brazilian Patent and Trademark Office at the time of filing the patent. The time period of protection of an invention is 20 years and for utility models is 15 years.