Divisional Patent Practice In Brazil: Analysis Of A Developing Landscape

Eduardo Hallak, Juliana Neves, and Gabriela Monteiro of Licks Attorneys explain how Brazilian courts have reshaped divisional patent practice and assess the practical impact of the current framework

The possibility of filing divisional patent applications after the rejection of a parent application has long been embedded in Brazilian patent law. Article 26 of the Brazilian Patent Law expressly authorises applicants to divide a patent application until “the end of the examination”, without distinguishing between first and appellate levels of prosecution. For years, however, this statutory authorisation coexisted with a restrictive administrative rule adopted by the Brazilian Patent and Trademark Office (BPTO), which established the conclusion of first-level examination as the final procedural milestone for division. This tension between statutory law and administrative interpretation ultimately gave rise to a sequence of litigations that reshaped the legal landscape.