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Newsletter 2015.10 – Resolution 212/09 of the Brazilian Patent Office Regulates the Possibility of Belatedly Entering the National Phase on an International Application

The Brazilian Patent Office has finally regulated the procedures concerning the possibility of entering the national phase of international applications after the expiry of the 30-month term foreseen in the PCT.
 
As you may know, the PCT has suffered many recent changes. One of them was the introduction of Rule 49.6 which allows a designated office to accept an application after the end of the 30-month term. The applicant must show that the failure to meet the deadline was unintentional or occurred in spite of due care required by the circumstances. This rule has been in force since 01 January 2003, and each office may apply either criterion or both.
 
In Resolution 212/09, dated 14 May 2009, the Brazilian Patent Office did not specifically mention these two criteria, but rather defined fortuitous case and force majeure as the two reasons that may justify the delay by the applicant. The definition given to these two criteria is one and the same: “the forthcoming unpredictable and unavoidable event, natural or deriving from human action, superior and extraneous to the applicant's will that, by the influence thereof, prevented him from carrying out the act that he was supposed to.”
 
In either situation, a request must be presented describing the facts that caused the delay, and evidence of such facts must be submitted. A tax must also be paid. The request will be examined by the Patent Office and a decision will be made as to either accept the application or not. If the request is denied, the application will be considered as withdrawn in respect of Brazil. An appeal may be lodged against such a rejecting decision.
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