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By Fábio de Araújo Ottoni Ferreira

BPTO Publishes New Rules For Prioritization Of Patent Applications Prosecution

The Brazilian Patent and Trademark Office (BPTO) published by means of Ordinance No. 79, dated December 16th, 2022, which will come into effect on January 1st, 2023, a new regulation for establishing guidelines for priority prosecution for patent applications within the scope of the BPTO.

Now permanently and without a limited number of requirements per annual cycle, the modalities of “Technology Available on the Market” and “Technology Resulting from Public Financing” join the other modalities of priority Applicant with Disability, Applicant with Serious Illness, Sole Entrepreneur, Micro Enterprise or Small Business Applicants, Scientific, Technological and Innovation Institution Applicant, Startup Applicant, Green Technology, Health Treatment Technology, Technology Requested by the Ministry of Health, Technology of Public Interest or National Emergency, Grant of Financial Resource, Applicant Accusing Counterfeiting, Third Party Accused of Counterfeiting, Previous User of Technology and Patent Family Originated in Brazil.

The priority type “Technology Available on the Market” applies to patent applications whose all or part of the subject claimed matter has been licensed, offered for sale, imported or exported, using the Brazilian market as a reference.

Also, the type “Technology Resulting from Public Financing” refers to patent applications whose claimed matter has been developed from direct financial support resulting from public revenues.

In addition, the new Ordinance determines that the modality of Health Treatment Technology now encompasses patent applications whose object is related to public health emergencies of national importance, according to the Decree 7,616/2011, or international importance, when declared by the World Health Organization.

In order to be able to participate in one of the priority prosecution modalities described herein, it will be necessary to file, together with the request form, documents that demonstrate that the patent application lies within the indicated modality.

According to this Ordinance, the BPTO now requires that, in the case of division of the patent application before the request for the priority prosecution, both the original application and its divisional application(s), must meet the requirements for priority prosecution.

It should be noted that the effects of priority examination extend until the end of the administrative sphere, that is, its effects are valid even during the appeal stage at the BPTO.

If you are interested in obtaining more details, have specific questions or wish to participate in any of the programs, do not hesitate to contact us at mail@kasznarleonardos.com.

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