Another announcement, by the INPI's president, reinforced the perspective of a substantial decrease in the agency's examination time. On April 6. 70 new patent and trademark examiners started work This group had been approved in exams done in 2014, but their hiring had been delayed by budgetary concerns. The federal government has authorised that they be admitted.
This is the second hiring plan in recent years. Last year, 140 new examiners were engaged. Altogether, the increase of 210 examiners in two years represents a rise of approximately 25%in the agencys personnel. Upon completion of training sessions during an adaptation period,
the new examiners are expected to contribute to an increase of the agencys productivity, speeding up examination and reducing the backlog of applications.
It is also important to mention that INPI has not looked for shortcuts. Until now, there have been no automatic rulings on pending applications (either accepting or rejecting, thus transferring the problem to appellate bodies and courts) or a term for applicants to file a confirmation of interest (with automatic rejection of the remaining cases). The INPI has been avoiding simplistic solutions towards drastically reducing the backlog in the short term, a testament to the seriousness of the Brazilian IP system.
Less governmental interference
The final announcement on April 12 concerned the registration of technology transfer and
IF-related agreements by the INPI. The mandatory registration of such agreements has been labelled extremely invasive, often compelling private parties to amend conditions that had been freely agreed upon in order to secure approval.
Whereas registration was necessary for tax deduction of payments and for remittance of royalties abroad, most companies simply agreed to the conditions imposed by the agency. In some cases, however, contracting parties challenged the conditions imposed by the INPI in lawsuits, with inconsistent results. The tension between favourable and negative decisions in the case law became history with the enactment of Normative Instruction 70 of 2017, under which the INPI replaces the examination of the merits of each agreement by a mere verification of the applicable formalities.
Henceforth, the INPI will no longer examine the payment clause of the agreements and will approve the registration of them. A general disclaimer will be included in every certificate of registration stating: “the INPI has not examined the agreement under the statutory rules pertaining to tax and foreign exchange control law”.
The new procedure entails a higher responsibility for the parties, since royalties may be remitted abroad and tax deducted more easily, but approval by INPI will no longer serve as a defence in tax procedures.
Turmoil is gradually fading, leaving a place for a new cycle of economic growth and social stability in Brazil. Among the many ongoing reforms, it is reassuring to see that the INPI is finally able to reclaim a prominent place in the country’s political landscape.
Many young IP practitioners in Brazil had never seen the INPI under the spotlight, reinforcing the symbolism of having Brazil’s president chairing an event with the INPI.
Brazil may be facing the beginning of a new trend in our IP system, with the possible reduction in prosecution delay of applications and policies that are more predictable and business-friendly. For the first time in several decades, IP and the INPI have become a priority of the federal government, showing that a political environment more friendly towards innovation is finally arriving in Brazil.
This article originally appeared on WIPR ANNUAL 2017 .