The government is considering an emergency measure to eliminate the Brazilian Patent and Trademark Office’s (BPTO) chronic patent backlog by automatically granting 230,000 pending applications by 2020. The government labelled this proposed emergency measure an “extraordinary solution” for the problem, and a draft of the plan has been introduced for public discussion.
The proposal entails a simplified examination procedure in which the BPTO would automatically grant unopposed applications that were filed before 2014 but have not been examined. However, this measure does not include either pharmaceutical applications or divisional applications where the parent application has been examined.
The solution has an at-will applicant opt-out clause and interested third parties would have up to 90 days to file pre-grant oppositions after an application is pre-approved for an automatic grant.
However, the emergency measure is already generating controversy. While it may finally resolve the backlog issue, some patent practitioners fear that patents granted under this measure would be more vulnerable to invalidity challenges before the BPTO and the courts.
The BPTO currently relies on 324 examiners, whose productivity per capita has increased in recent years. In 2017, estimates suggest that each examiner will examine an average of 55 applications. Without the measure under discussion, the BPTO would take 13 years to clear the backlog. Even if the BPTO doubles the existing number of examiners, the process would still take eight years. However, this option would incur substantial costs and involve a high level of idle capacity following the eight-year period.
The Ministry of Industry has already presented the automatic grants proposal for public consultation.
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