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Brazil represents a pivotal market for patent owners, thanks to its extensive consumer base and well-established pro-patent system, providing a reliable and efficient means of acquisition and adjudication. Still, many patent owners overlook the country when building and enforcing patent portfolios.
In recent years, the Brazilian patent office has implemented several measures to combat backlog and expedite examination processes. As a result, the average examination time has significantly decreased to an average of 4.3 years The PPH and fast-track programs patents can be issued in under 18 months.
Standing at over 87%, the global allowance rate of the Brazilian PTO also places the country as a patent-friendly jurisdiction. In the past three years, 90% of telecom applications were granted, whereas the rate for life-sciences stood at above 70%, while the computer and electronics sectors experienced a rate surpassing 80%.
Brazil’s patent kill-rate in post-grant oppositions stands at 16%, which is considerably lower than in other prominent jurisdictions. A closer examination of the data reveals even more promising figures within key technical sectors, as the subsequent chart illustrates. This evidence underscores Brazil’s favorable environment for patent owners seeking to protect their intellectual property in a competitive global landscape.
|Área||KILL RATE IN POST GRANT OPPOSITIONS (2013-2023)|
Brazilian courts have consistently exhibited a commitment to the enforcement of patent rights. This is evident in their reluctance to stay the effects of patents before or during litigation, as well as their firmness to secure due process of enforcement procedures concurrent with validity challenges. Statistical evidence further illuminates this trend, as over 90% of requests seeking to stay the effects of a patent before or during concurrent enforcement litigation are denied by federal judges.
Furthermore, Brazil’s population of over 210 million and robust middle class provide strategic opportunities across a wide range of industries. Brazil is the largest telecommunications market in Latin America and the fifth-largest smartphone market globally, boasting over 143 million users. The country also ranks among the top 10 pharmaceutical markets worldwide and holds the largest automotive market in Latin America, ranking eighth globally. These thriving sectors, along with Brazil’s booming agribusiness and oil & gas industries, present abundant opportunities for IP owners.
In addition, Brazil features an effective patent enforcement system that is marked by the broad accessibility of injunctions. Brazil presents no eBay-like limitations on injunctive relief, thus providing patent owners with a substantial degree of protection. Although patent owners may benefit from incorporating multiple patents into a single lawsuit, it is important to recognize that judges frequently allow enforcement based on a single patent and grant preliminary injunctions at the beginning of litigation, which further illustrates the efficiency of Brazil’s intellectual property system.
Patent owners should strengthen their portfolios in Brazil, capitalizing on the vast market and favorable conditions offered by Brazil’s patent office and judicial system. The Brazilian legal system has consistently enabled patent owners to achieve the results expected, surpassing even those achieved in traditional jurisdictions. However, patent owners who neglect Brazil when filing their strategic portfolios miss out on the benefits this jurisdiction has to offer and leave themselves vulnerable when their resources are needed most.
Otto Licks and Rodrigo Maior