Legislative Implementation of Flexibilities - Brazil
| Title: | Articles 20 and 30-37 of the Industrial Property Law No. 9.279 of 14/05/1996 (as last amended by Law No.10.196, of 14/02/2001) |
| Field of IP: | Patents |
| Type of flexibility: | Substantive examination |
| Summary table: |  |
Provisions of Law
20. Once the application has been submitted, it shall undergo a formal preliminary examination and, if found to be properly documented, shall be docketed, the date of submission shall be considered as the date of filing.
30. A patent application shall be kept secret for 18 (eighteen) months from the date of filing or of the oldest priority, if any, after which it shall be published, except as provided for in Article 75.
(1) The publication of the application may be anticipated at the request of the applicant.
(2) The publication shall contain data identifying the patent application, and a copy of the specifications, claims, abstract and drawings shall remain available to the public at the INPI.
(3) In the case referred to in the Sole Paragraph of Article 24, the biological material shall become available to the public upon the publication referred to in this Article.
31. After publication of the application and up to the end of the examination, interested parties may submit documents and data to assist the examination.
Sole Paragraph. The examination shall not begin before 60 (sixty) days from the publication of the application.
32. In order to better clarify or define a patent application, the applicant may make changes until the time of the request for examination, provided these are limited to the subject matter initially disclosed in the application.
33. The examination of a patent application must be requested by the applicant or by some other interested party, within a period of 36 (thirty six) months of the date of filing, under penalty of having the application dismissed.
Sole Paragraph. A patent application may be reinstated, if the applicant so requests, within 60 (sixty) days of the date it was dismissed, upon payment of a specific fee, under penalty of having the application definitively dismissed.
34. After the examination has been requested, the following must be submitted, within a period of 60 (sixty) days, whenever requested, under penalty of having the application dismissed:
I. objections, search for prior art and results of examination for granting of a corresponding application in other countries, when priority is claimed;
II. documents necessary to regularize the processing and examination of the application; and
III. free translation of the proper document referred to in Paragraph 2 of Article 16, if it was replaced by the statement referred to in Paragraph 5 of the same Article.
35. At the time of the technical examination, a report of search and an opinion shall be prepared with respect to:
I. patentability of the application;
II. appropriateness of the application given the nature claimed;
III. reformulation or division of the application; or
IV. technical requirements.
36. When the opinion ascertains the non-patentability of the application or the incompatibility of the application to the nature claimed, or makes some demand, the applicant shall be notified to submit comments within a period of 90 (ninety) days.
(1) If there is no response to the demand, the application shall be definitively dismissed.
(2) If there is response to the demand, even if it has not been satisfied, or its formulation is contested, and whether or not comments on patentability or compatibility have been submitted, the examination shall be continued.
37. Once the examination has been concluded, a decision shall be handed down, either
approving or rejecting the patent application.