An International Guide to
Patent Case Management for Judges

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3.1 Overview of the patent system

3.1.1 Evolution of the patent system

There was a time when, due to the lack of a mechanism to ensure exclusivity for a certain period, inventors preferred to keep their inventions secret. This allowed the inventor to take advantage of their results, it being normal for their inventions and findings never to be known by anyone else. The basic idea of granting inventors temporary exclusivity over the commercialization of their inventions is old, although the most remembered milestone is the institutionalization and internationalization of intellectual property statutes, including for patents, provided for in the Paris Convention for the Protection of Industrial Property of 1883 (Paris Convention).1

However, the idea of granting temporary exclusivity to inventors dates back to the fifteenth century, specifically the year 1449, in England, and was related to the manufacturing of stained glass, especially those that were used in the Catholic churches of the Middle Ages. At that time, King Henry VI gave a Flemish immigrant, John of Utynam, 20-year exclusivity for the manufacturing of a kind of colored stained glass he had invented – which can still be seen in the chapel of Eton College in England. At the time, the inventor had the duty to teach English stained-glass manufacturers the manufacturing process. It is interesting to note that the pressure to grant inventors some kind of exclusivity began in the Middle Ages “corporations.” Also in the fifteenth century, the famous Venetian crystal glassblowers, for example, created a similar system to protect their knowledge.

The topic of intellectual property has been discussed internationally for many decades and has involved political disputes due to unresolved issues, such as the definition of the subject matter and limits of protection, reconciliation of the interests of innovative companies and holders of intellectual property rights with those of society, and even the balance between developed countries (which dominate knowledge and make use of protection mechanisms) and countries that need to promote development to reduce poverty and improve their populations’ quality of life.

Patenting a product or process seems to be one of the most used resources in the country to avoid copies and to guarantee exclusivity in commercial exploitation. Indeed, the patent is a protection mechanism most used by the pharmaceutical industry. The basic premise for the pharmaceutical industry is to achieve a reasonable return on the investment made in research and development. A patent guarantees exclusivity and helps the company charge prices that allow it to cover the costs of research and finance other innovation activities.

The monopoly provided by a patent is essential to make it difficult for competitors – for the period limited by statute – to copy inventions freely. This discourages other companies from entering the technological segment or field of interest. Holding patents can influence investors’ perceptions, especially in publicly held companies, as patents provide investors with confidence and reflect the financing of innovative activities.

Having patents shows – not only to investors but also to other institutions (e.g., competitors and universities) – who these companies are and where they are going in terms of technology and innovation. It also helps to disseminate knowledge of their technological competence, which can help generate different opportunities: licensing, mergers, acquisitions and so on.

Another point of interest for companies in relation to pharmaceutical patents, especially among smaller companies, is the possibility of raising resources through licensing. Smaller laboratories find it difficult to bear development costs and need to collaborate with large companies for this process. Without patent protection, and given the small size of their businesses, these companies can be at a disadvantage in negotiations with large corporations. For larger laboratories, which tend to have global businesses, technology licensing can be a strategy to access certain markets. In any case, patent protection is a fundamental requirement for guaranteeing royalty revenues.

The long development period for new products, including clinical trials and regulatory processes, and the high costs of development, reinforce the importance of patents, especially in the pharmaceutical sector. However, there is a cost in obtaining and maintaining patents, as well as in enforcing against their infringement. We can also raise rhetorical questions about whether the temporary monopoly ensures a return on investments, on the risks of research development activities, on expenses incurred in the general and special registration of medicines, and on the placing of the product in the market.

This incentive given by the State in the form of the patent is made to establish an exchange with the inventor, since the inventor presents a useful invention for society (e.g., machines, medicines, tools and industrial processes), thereby justifying a reward by the State in ensuring this temporary protection and establishing “the right to prevent third parties from exploiting this invention without the inventor’s consent.”2

In Brazil, the patent system is based on Article 5(XXIX) of the Constitution, which provides for this temporary privilege and the protection guaranteed by patents, with a view to promoting social interest and the technological and economic development of the country.3 The patent system is governed, in particular, by Federal Law No. 9,279, of May 14, 1996 (Industrial Property Act; Lei da Propriedade Industrial (LPI)),4 enacted following the ratification, by Congress, of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement),5 incorporated into the Brazilian legal system by Decree No. 1,355, of December 30, 1994.6

While the LPI has substantially innovated the matter of industrial property in national legislation, little progress has been made in defining procedural aspects. Thus, a considerable part of the standards and rules applicable to patent lawsuits derive from general procedural rules and have been adapted by the national case law to the inherent peculiarities of patent litigation. Thus, it is worth noting that the civil procedure in these patent cases is substantially guided by the general procedural rules provided for in Federal Law No. 13,105, of March 16, 2015 (Code of Civil Procedure; Código de Processo Civil (CPC))7 and by court resolutions, while complying with the specific provisions of the LPI itself.

In Brazilian law, intellectual property encompasses copyright and related rights, and industrial property rights. The LPI generally regulates industrial property rights, and, in some specific cases, there is special legislation that has priority over the general law insofar as it is special. This is the case, for example, of Law No. 9,456, of April 25, 1997,8 concerning the reproductive material or vegetative multiplication material of the entire plant.

A patent is granted by the State – in Brazil, it is granted by the National Institute of Industrial Property (Instituto Nacional da Propriedade Industrial; INPI), to inventors or legal entities holding exploitation rights (i.e., a monopoly on the exploitation of an invention or utility model). In Brazil, a patent is granted only if the novelty, inventive step and industrial application requirements are met.

The word “patent” comes from Latin, from the singular nominative word patens, the genitive of which is patentis,9 and means something that is clear, accessible, exposed and, for our study, evident to everyone.

A patent, in simple terms, is a contract between the inventor and society. In this contract, inventors make their inventions public, binding upon everyone (erga omnes) and receiving in return, for a fixed period, the right to exploit the invention commercially and exclusively. This system guarantees the transfer of knowledge from the inventor to others interested in producing and marketing that product because, after the patent term, anyone can copy the product and use the information contained in the original patent application.

With the rights afforded by a patent, patent holders have the right to prevent third parties, without their consent, from producing, using, offering for sale, selling or importing a product that is under the patent – including processes or products obtained directly by a patented process. Conversely, the patent holder undertakes to reveal, in detail, the entire technical content of the subject protected by the patent.

3.1.2 Types of patents

There are two types of patents. An invention patent protects a creation resulting from the exercise of creative capacity that represents a new solution to a technical problem existing within a given technological field and that can be manufactured. Inventions may refer to industrial products (e.g., compounds, compositions, objects, apparatus and devices) and industrial activities (e.g., processes and methods). An invention is patentable when it simultaneously meets three basic requirements: novelty, inventive step and industrial application (Article 8 of the LPI). Invention patents provide protection to creations of a technical nature that aim at a particular technical effect. The term of protection of this type of patent is 20 years from the date of filing.

An object of practical use (or part thereof) is patentable as a utility model if it is susceptible of industrial application, has a new form or arrangement, and involves an inventive act, that together result in functional improvement in the object’s use or manufacture (Article 9 of the LPI). This object must be three-dimensional (e.g., instruments, utensils and tools). The term of protection for this type of patent is 15 years from the date of filing.

Additionally, the applicant or holder of an invention patent may request, upon payment of a specific fee, a certificate of addition of invention to protect an improvement or development introduced in the object of the invention, even if it lacks inventive step, as long as the subject matter is included within the same inventive concept (Article 76 of the LPI). The application for a certificate of addition is rejected if its subject matter does not present the same inventive concept (Article 76(3) of the LPI).

The certificate of addition is an accessory to the patent; it has the same expiration date as the patent and follows the patent for all legal purposes (Article 77 of the LPI). In nullity proceedings, the holder may request that the matter contained in the certificate of addition be examined to verify the possibility of its subsistence, without prejudice to the patent’s term (Article 77(1) of the LPI).

3.1.3 The granting of a patent

The granting of a patent is an administrative act of declaration (after which the patent holder’s right is recognized) and attribution (constitution), requiring the patent application and its processing before the government. Drawings

Drawings must be presented clearly in firm, uniform lines and in indelible ink. There must be as many drawings as necessary for the perfect understanding of the patent object and they must be numbered consecutively. Each part, piece or element of a drawing must contain numerical references, which must be described in the specifications and in the claims.

In a patent application for a utility model, it is essential to present one or more drawings, since the reading of the claims is always associated with them, considering that the utility model patents refer specifically to three-dimensional objects. Specifications

A patent application or certificate of addition must be sufficiently specified, which means that it must contain all the details necessary to allow a person skilled in the art to reproduce the object, and it must indicate, where appropriate, the best way of execution (Article 24 of the LPI). The specifications should also point out the existing problem in the state of the art and the proposed solution, specifying the technical sector in which it is intended to be used. Additionally, the specification must clearly highlight the novelty, the technical effect achieved (in the case of an invention) and its advantages in relation to the state of the art. The specifications for a utility model patent application must additionally highlight the conditions under which the object (or part thereof) is better used as a result of the new shape or layout introduced, showing the functional improvement achieved.

An application must start with a title (it cannot be a brand or invented name). This title must define concisely, clearly and precisely the technical scope of the invention and must be the same for the request, specifications, abstract and sequence listing, if any. A patent application must refer to a single invention – or to a group of interrelated inventions in such a way that they constitute a single inventive concept – and describe the invention’s purpose, application and technical field of use, comparing the subject matter of the protection with the state of the art, highlighting its advantages and the problem that it intends to solve. It must then list the drawings, if any, numbering them consecutively and describing their meaning. Then, it must describe, in detail, the subject matter of the patent application according to those drawings, referring to the numerical references of each part of the drawing.

Finally, there must be an abstract summarizing the subject matter of the patent application, following the title, clearly highlighting the subject matter. It must contain between 50 and 200 words and be a maximum of 25 lines of text. The abstract should encompass the technical characteristics, the solution to the problem described and its main uses. The main purpose of this is to facilitate a researcher’s search in the patent banks. Claims

The wording of the claims is of the utmost importance in the preparation of a patent application. The extent of the protection granted by a patent is determined by the content of these claims as interpreted based on the specifications and drawings – that is, the claims define and limit the extent of protection conferred by the patent (Article 41 of the LPI). The claims must be based on the specifications, which characterize the particularities of the application and clearly and precisely define the subject matter of protection, avoiding expressions that lead to uncertainties (Article 25 of the LPI).

Claims can be classified either into:

  • independent claims: claims that, while maintaining the invention unity, or the technical–functional and bodily unity of the object (in the case of utility models), aim at the protection of essential and specific technical characteristics of the invention, or of the utility model, in its integral concept. Independent claims may serve as the basis for one or more dependent claims; or
  • dependent claims: claims that, while maintaining the invention unity, or the technical–functional and bodily unity of the object (in the case of utility models), include features of other previous claims and define details of these features or additional features, containing an indication of their dependence on those claims.

In an invention patent application, there must be a definition, after the expression “characterized by,” of the essential and particular technical features that, combined with the aspects explained in the preamble, are to be protected.

In the case of a patent application for an invention, the claims chart may consist of more than one independent claim, since, in this case, the claims may fall into one or several categories (e.g., product and process; or process and apparatus). However, they must be connected by the same inventive concept and arranged in the most practical way possible, admitting more than one independent claim of the same category if it defines different sets of alternative and essential characteristics to the realization of the invention. Independent claims of different categories in which one of the categories is specially adapted to the other should be preferably drafted to show their interconnection, using expressions in the initial part of the claim such as “apparatus for carrying out the process defined in the claim” and “process to obtain the product defined in the claim.”10

In the case of a utility model patent application, after the expression “characterized by,” all the elements that constitute the model must be defined, as well as their positions and interconnections in relation to the whole. In a utility model patent application, the set of arrangements and forms responsible for the best use of the object must be fully characterized in a single and independent main claim. The utility model may include complementary elements of optional use or variations of form characterized in dependent claims, defined in the main claim, that do not change the unity of the model and its operation. If the utility model has a flat structure, as defined in the main claim, a dependent claim describing the secondary three-dimensional shape of the object arising from that flat structure is admitted. Novelty

An invention or utility model is considered new when it is not comprised by the state of the art – that is, when it is not fully described by a single document in the state of the art (Article 11 of the LPI) existing prior to the filing date, except if the inventor uses the grace period or claims priority of a former application. The invention or utility model must not have been revealed to the public in any form – written or spoken – by any means of communication, use, presentation at trade shows or sale anywhere in the world.

However, the disclosure of an invention or utility model, if it occurs during the 12 months preceding the filing date or the priority date of the patent application, is not considered as part of the state of the art if such a disclosure is made by the inventor or by a person authorized by the inventor, whether in exhibitions, lectures or publications (Article 12 of the LPI). It is worth noting that the INPI may require a statement from the inventor concerning the disclosure, accompanied or not by evidence, indicating the form, place and date of the disclosure. Also, the inventor may indicate this information when filing the application.

The unionist priority established by Article 4 of the Paris Convention ensures that, within 12 months, the disclosure of an invention or utility model – resulting from the first filing of an application in one of the signatory countries of the Convention, other than Brazil – does not jeopardize the subsequent filing of a corresponding application in Brazil (Article 16 of the LPI). Therefore, any disclosure occurring between the claimed priority date and the date on which the application was filed in Brazil does not affect the novelty and inventive step of the application in Brazil.

If the application filed in Brazil presents additional material in relation to the first filing abroad – whose priority is being claimed – the date of the examination of the state of the art is the date of filing in Brazil. It should be noted that the term of protection for a patent is counted from its filing date in Brazil.

An invention or utility model patent application originally filed in Brazil (without priority claim and not yet published) guarantees the right of priority to a subsequent application on the same subject matter filed in Brazil by the same applicant or successors within a period of one year (Article 17 of the LPI). Upon the filing of the subsequent application, the priority claim must be presented by indicating on the filing form the number and date of the previous application. Thus, the earlier application that serves as the basis for the internal priority claim cannot be used to invalidate the novelty of the later one. Additionally, the previous application is considered definitively dismissed.

Priority is admitted only for the subject matter disclosed in the previous application, not extending to any new matter introduced (Article 17(1) of the LPI). Both the previous and the subsequent application must have complete technical content (with specifications, drawings and a claim chart), each with its own numbering. It should be noted that a patent application originating from the division of a previous application cannot serve as the basis for claiming priority (Article 17(3) of the LPI).

Internal priority does not extend the time limits for claiming unionist priority. That is, if the applicant wishes to file corresponding applications in other countries, they must do so within 12 months of filing the first application (i.e., the application that served as the basis for the internal priority). Inventive step

An invention presents an inventive step if it is not derived from the state of the art in a manner that is evident or obvious to a person skilled in the art (Article 13 of the LPI). That is, a solution presented in an invention has an inventive step if it is not obvious to a person skilled in the art, with the resources available in the state of the art, at the time of filing. Therefore, an invention with an inventive step must represent something more than the result of a mere combination of known characteristics or of the simple application of knowledge usual to a person skilled in the art.

A utility model presents an inventive step if, for a person skilled in the art, the subject matter of the protection is not derived, in a common or ordinary manner, from the state of the art (Article 14 of the LPI). In utility models that involve an inventive step, obvious or simple combinations of characteristics in the state of the art are accepted, as are predictable technical effects, provided that the model to be patented presents a new shape or layout that results in a functional improvement in the use or manufacture of the object to which the model applies.

The legal literature comments that

[a]s a general rule, novelty is understood to exist whenever the invention or model is not fully provided for by a single state of the art document. This is because if two or more state of the art documents need to be combined in order to provide for the invention, the issue shifts to determining the inventive step, in other words, it should be determined whether or not the combination of those documents was obvious to the person skilled in the art.11 Industrial application

An invention or utility model is considered susceptible to industrial application if it can be used or produced in any type of industry (Article 15 of the LPI). Non-patentable inventions and utility models

A subject matter is patentable if it is not prohibited by law, and it meets the legal requirements established in Articles 8, 9, 11, 13, 14 and 15 of the LPI and the conditions set out in Articles 24 and 25 of the LPI.

Brazilian legislation does not have the concept of patent eligibility. Instead, it clarifies what subject matters are patentable and requires that they derive from an inventive step.

According to Article 18 of the LPI, the following items are not patentable:

I – anything that is contrary to morals, good customs and public security, order, and health;

II – the substances, materials, mixtures, elements, or products of any kind, as well as the modification of their physical-chemical properties and the respective processes for obtaining or modifying them, when resulting from the transformation of the atomic nucleus; and

III – the whole or part of living beings, except for transgenic microorganisms that meet the three requirements for patentability – novelty, inventive step, and industrial application – provided for in Article 8, and that are not a mere discoveries.

Article 18 defines “transgenic microorganisms” as

organisms, except the whole or parts of plants or animals, that express, through direct human intervention in their genetic composition, a characteristic not normally attainable by the species under natural conditions.

Article 10 of the LPI also indicates several subject matters that are considered neither inventions nor utility models:

I – discoveries, scientific theories, and mathematical methods;

II – purely abstract conceptions;

III – commercial, accounting, financial, educational, advertising, rafflling, and inspection schemes, plans, principles, or methods;

IV – literary, architectural, artistic, and scientific works or any aesthetic creation;

V – computer programs;

VI – presentation of information;

VII – rules of games;

VIII – operating or surgical techniques and methods, as well as therapeutic or diagnostic methods, for application to the human or animal body; and

IX – the whole or part of natural living beings and biological material found in nature, or even if isolated therefrom, including the genome or germoplasm of any natural living being and natural biological processes.

3.1.4 Inventor and ownership

Articles 6–7 of the LPI govern patent ownership. The author of an invention or utility model is assured the right to obtain a patent that guarantees ownership, under the conditions established in the LPI (Article 6). If this rule is not complied with, the inventor may, alternatively, claim the grant of a patent through judicial proceedings (Article 49 of the LPI).

Under the law, a patent applicant is presumed to be entitled to obtain the patent unless proven otherwise (Article 6(1) of the LPI). This is a legal presumption, but it can be ruled out; administrative or judicial nullity can be determined (Articles 50(I) and 46 of the LPI, respectively).

A patent may be applied for under the author’s own name, by the author’s heirs or successors, by the assignee, or by the person to whom the ownership belongs according to the law or the employment or service agreement (Article 6(2) of the LPI). The inventor will be named and qualified and may request the nondisclosure of their name (Article 6(4) of the LPI).

Where an invention or utility model has been developed jointly by two or more persons, the patent may be applied for by all or any of them upon indication and qualification of the others, as a disclaimer of their rights (Article 6(3) of the LPI). If two or more authors have developed the same invention or utility model independently, the right to obtain the patent is guaranteed to the one who proves to have made the filing first, regardless of the dates of invention or creation (Article 7 of the LPI); this article establishes the first-to-file rule in Brazil.12 Withdrawing a previous patent filing that had not produced any effect gives priority to the immediately subsequent filing (Article 29(2) of the LPI).

According to Article 42 of the LPI, a patent entitles its holder the right to prevent third parties from producing, using, putting on sale or selling – or importing for these purposes – without the holder’s consent:

I – a product that is the object of the patent;

II – a process or product obtained directly through a patented process.

The patent holder is also granted the right to prevent third parties from contributing to the practice of these acts by others (Article 42(1) of the LPI). If the possessor or owner fails to prove, by specific judicial determination, that their product was obtained by a manufacturing process different from that protected by the patent, the process patent right will be deemed infringed (Article 42(2) of the LPI).

However, the patent holder may not prevent a third party from producing, using, putting on sale or selling – or importing for these purposes – in the following cases:

I – acts performed by unauthorized third parties, on a private and non-commercial basis, provided that they do not harm the economic interest of the patent holder;

II – acts performed by unauthorized third parties for experimental purposes, related to scientific or technological studies or research;

III – preparation of drugs according to a medical prescription for individual cases, conducted by a qualified professional, as well as the drug itself thus prepared;

IV – a product manufactured according to process or product patent that has been placed on the domestic market directly by the patent holder or with their consent;

V – third parties who, in the case of patents relating to a living matter, use the patented product, without economic purposes, as an initial source of variation or propagation to obtain other products; and

VI – third parties who, in the case of patents relating to a living matter, use, circulate, or market a patented product that has been lawfully introduced into the market by the patent holder or the license holder, provided that the patented product is not used to commercially multiply or propagate the living matter in question.

VII – acts committed by unauthorized third parties, related to the patent-protected invention, intended exclusively to produce information, data, and test results, aiming at obtaining a trade license in Brazil or any other country, for the exploitation and sale of the patent-protected product, after expiration of the time limits set forth in Article 40. (Article 43 of the LPI)

In addition to preventing the infringement of their patent, a patent holder also has the right to obtain compensation for the improper exploitation of the patented object (Article 44 of the LPI).

3.1.5 Properties of invention patents or utility models developed in labor relationships

Articles 88–93 of the LPI govern the ownership of invention patents or utility models developed in labor relations.

The invention and the utility model belong exclusively to the employer if they arise from an employment contract, the performance of which takes place in Brazil and that has research or inventive activity as its object, or when an invention results from the nature of the services for which the employee was hired (Article 88 of the LPI). Unless it is expressly determined otherwise in the contract, the compensation for the work referred to in this article is limited to the agreed salary (Article 88(1) of the LPI). Unless proven otherwise, an invention or utility model whose patent is applied by the employee up to one year after the termination of the employment relationship is considered to have been developed during the term of the contract (Article 88(2) of the LPI).

The employer (i.e., the patent holder) may grant to the employee (i.e., the author of an invention or improvement) a share in the economic gains resulting from the exploitation of the patent upon negotiation with the interested party or as provided for in the company’s bylaws (Article 89 of the LPI). The share referred to here is not incorporated, in any way, into the employee’s salary. Nevertheless, the invention or utility model developed by the employee belongs exclusively to the employee, provided that it is unrelated to the employment contract and does not arise from the use of the employer’s resources, means, data, materials, facilities or equipment (Article 90 of the LPI).

The ownership of an invention or utility model is shared, in equal parts, when it results from the personal contribution of the employee and from the employer’s resources, data, means, materials, facilities or equipment, except if the contract expressly determines otherwise (Article 91 of the LPI). If more than one employee is involved, their share is divided equally among all of them unless otherwise determined (Article 91(1) of the LPI).

The employer has exclusive exploitation rights, and the employee is ensured fair compensation (Article 91(2) of the LPI). In the absence of an agreement, the exploitation of the patented object must be initiated by the employer within one year of the date of its grant. Otherwise, the patent’s ownership may be transferred exclusively to the employee, except in cases where the failure to exploit is due to legitimate reasons (Article 91(3) of the LPI).

In case of assignment, any of the co-titleholders, on equal terms, may exercise the pre-emptive right (Article 91(4) of the LPI).

The above-mentioned rules apply, where appropriate, to relations between self-employed workers or trainees and the contracting companies, as well as between contractors and contracting companies (Article 92 of the LPI).

3.1.6 Patent term and expiration

Invention patents have a term of 20 years, and utility model patents have a term of 15 years from the date of filing (Article 49 of the LPI).

According to this legal provision, if the INPI took more than 10 years to grant a patent, this time would be included to the term of the patent.

In 2015, the average time for administrative processing was 11 years or, in certain technological areas, 14 years.13 The INPI engaged in a plan to combat the backlog, which led to a reduction in the average time to grant a patent to approximately eight years.14

Article 40 of the LPI previously provided a minimum term of ten years for invention patents and of seven years for utility model patents. This was to ensure that patents were in force for a reasonable term, and avoid granting patents close to expiration of their term. In other countries (e.g., Australia, China, the Republic of Korea and the United States), where patents are granted in less than four years on average,15 patent holders enjoy more than 16 years of market exclusivity.

The constitutionality of the provision that ensures a minimum term for patents is not only to ensure for the private sector but also for publicly held companies and universities to exploit their patents. However, recently, the Federal Supreme Court (Supremo Tribunal Federal; STF) declared the aforementioned provision unconstitutional when it decided on Direct Action of Unconstitutionality (ADI) No. 5,529/DF.16 The decision is valid for any and all categories of inventions, encompassing both applications already filed and awaiting a resolution from the INPI and new applications. On May 12, 2021, modulating the effects of the previous week’s decision, the STF, en banc, decided that patents that had already been granted for pharmaceutical products and processes and equipment or materials for health-care use no longer had the extended term provided for in Article 40(1) of the LPI. However, the declaration of unconstitutionality of the provision does not reach other patents already granted and still in force as a result of the extension of the term and becomes effective from the publication of the minutes of the trial of ADI No. 5,529. Article 40 (1) was further revoked by the Law no. 14.195, promulgated on August 26, 2021.

A patent is granted after the application is approved and the payment of the corresponding fee is proven, with the issuance of the respective letters patent (Article 38 of the LPI). The payment of the fee and respective evidence of payment must be made within 60 days of the granting date (Article 38(1) of the LPI). A patent is deemed granted on the date of publication of the respective act (Article 38(3) of the LPI). The letters patent must contain the number, title and nature of the patent; the name of the inventor; the holder’s identification and address; the term of validity; the specifications; the claims; the drawings; and the data relating to priority (Article 39 of the LPI).

A patent is valid only in the countries in which it has been applied for and granted protection. Each country is sovereign to grant a patent or not, regardless of the decision in other countries on corresponding patent applications filed there (Article 4bis of the Paris Convention).

3.1.7 Patent application trends

Figure 3.1 shows the total number of patent applications (direct and Patent Cooperation Treaty (PCT) national phase entry) filed in Brazil from 2000 to 2021.

Figure 3.1 Patent applications filed in Brazil, 2000-2021

Source: WIPO IP Statistics Data Center, available at