Patents
➤ What are the types of patents and its terms?
➤ How can I protect an invention or creation eligible for industrialization?
➤ How can I file a patent application?
➤ What documents shall I submit?
➤ How to use the WIPO-DAS tool for Official Copy services or for evidencing Priority?
➤ Is it necessary to conduct a research to know whether the invention already exists?
➤ Can I write my own patent application or should I look for a specialized office?
➤ Can I patent a product similar to another one already patented?
➤ In order to patent a product, is it necessary to submit the prototype?
➤ Is the patent only effective in Brazil?
➤ What are the rights assigned to the Patent holder?
➤ When does the payment of annual fees begin?
➤ Once the patent is filed with INPI, can the applicant already benefit from the rights of a patent?
➤ Is it possible to speed up the examination of my patent application?
➤ What are the benefits of the patent system for the society?
A patent is a temporary ownership title for an invention or utility model, granted by the Government to inventors, authors, or other individuals or legal entities that hold rights over the creation. With that right, the inventor or the holder of the patent has the right to prevent third parties to produce, use, offer for sale, sell, or import, without his consent, the good that is subject matter of his patent and/or process or good obtained directly through the process patented by him. On the other hand, the inventor undertakes to disclose in details the entire technical content of the matter protected by the patent.
What are the types of patents and its terms?
• Patent of Invention (PI): Goods or processes that meet the requirements related to inventive step, novelty, and industrial application. It is valid for 20 years of the date of application.
• Patente of Utility Model: Object with practical use, or part thereof, susceptible to industrial application, which includes a new form or arrangement, involving an inventive act resulting in a functional improvement to the use or manufacture. It is valid for 15 years of the date of application.
• Certificate of Addition of Invention (C): Improvement or development introduced in the object of the invention, even if devoid of inventive step, but still within the same inventive concept. The certificate will be accessory to the patent and with the same effective end date.
No. First, the LPI (Brazilian IP Law) does not provide for the protection as an invention and as a utility model of a series of actions, creations, abstract ideas, intellectual activities, scientific findings, methods, or inventions that cannot be industrialized. Some of such creations may be protected by Copyright, which is unrelated to INPI.
- Surgical or therapeutic techniques applied to the human or animal body;
- Commercial techniques, plans, or schemes related to calculations, financing, credit, lottery, speculation, and advertising;
- Plans related to medical assistance, insurance, discount schemes in stores, in addition to methods of education, rules of games, architectural designs;
- Artworks, musical compositions, books, and movies, as well as forms of presentation of information, such as posters and tags with the owner’s portrait;
- Abstract ideas, scientific findings, mathematical methods, or inventions that may not be industrialized;
- Entire or part of natural living beings and biological materials found in the nature, or even isolated therefrom, including the genome or germplasm of any natural living being and natural biological processes.
How can I protect an invention or creation eligible for industrialization?
The patent is the right instrument for it. Therefore, it is necessary to file an application in INPI, which, after due analysis, may become a patent valid in the entire national territory.
How can I file a patent application?
The patent application must be filed, exclusively, over the internet, through the e-Patents online platform. Documentation protocols delivered on paper (at the INPI reception or sent by post) are suspended by INPI Resolution No. 251, of October 2, 2019. See more details here.
What documents shall I submit?
The patent application shall include: (1) technical content - description, claims, sequence listing (as the case may be, for applications from the biotechnological field), drawings (as the case may be), and abstract; (2) application (service code 200); and (3) proof of payment of the payment slip related to the application (Brazilian Federal Revenue collection slip (GRU)).
How to use the WIPO-DAS tool for Official Copy services or for evidencing Priority?
Digital Access Service (DAS) is a system managed by WIPO which enables the compliance with the requirements of Paris Convention (CUP) related to the evidence of priority in an electronic environment, through a digital library, and ensures the safe exchange of these documents between the participating offices.
INPI is part of the DAS since February 16, 2018, as the Office of First Filing (OFF) or Office of Filing and since May 1st, 2018, as Office of Second Filing (OSF). See more details here.
As Office of Second Filing, the service is provided by INPI through the application of an official copy. See here how to request an official copy of a patent application deposited to the INPI-BR (Office of First Filing).
As Office of Second Filing (OSF), the evidence using DAS system may be requested by the applicant, informing the access code in a specific field of the electronic form for application of patents, or timely, through other petitions service (code 260 – Submission of the Priority Document) accompanied by a clarification containing the Access Code to the document provided by WIPO.
More information may also be seen in WIPO´s portal.
Is it necessary to conduct a research to know whether the invention already exists?
Before submitting the Patent application, we recommend a search for the applicant to know whether there is no equal or similar patent, not only in Brazil, but in the world.
Can I write my own patent application or should I look for a specialized office?
Yes, you can file your application yourself. The content of the patent application must be written in such a way that a technician in the subject is able to reproduce the creation.
Can I patent a product similar to another one already patented?
No. The invention cannot be identical or similar to another one already patented.
In order to patent a product, is it necessary to submit the prototype?
No. INPI does not require a prototype.
Is the patent only effective in Brazil?
The patent is only effective in the national territory.
Can I apply for protection for my invention in other countries as well? How can I submit my application outside Brazil?
In this case, it is necessary to file an equivalent application in the country or region from where you wish to obtain the patent. The application filed in Brazil shall be translated into the language of the country/region to which you wish to file, and a representative shall be appointed to represent the company in such country. The process of application in several countries can be simplified by using the Patent Cooperation Treaty (PCT), in which INPI acts as receiving office and conducts preliminary search/examination.
What are the rights assigned to the Patent holder?
The Patent holder is entitled to preventing third parties, without his consent, from producing, offering for sale, using, importing the product object of the patent or the process or product obtained directly by a patented process. Third parties may use the invention only with permission of the holder (license).
When does the payment of annual fees begin?
The applicant and the Patent holder shall be subject to the payment of annual fees. The annual fees shall be paid as of the second anniversary of the application. Then, the term (3 months) for payment of the annual fees (called third annual fee, since it is payable in the beginning of the third year) begins.
If the applicant misses this term, he has another 6 months to do so, but the amount to be paid increases. Failing to do so shall entail the dismissal of the application or patent.
Once the patent is filed with INPI, can the applicant already benefit from the rights of a patent?
No. What the applicant has is an “expected right” that will only be confirmed if he obtains the patent. If the applicant incurs losses due to unfair competition by someone using the same object of the invention, the applicant may contact such competitor by notifying it that, if the competitor insists in such unfair practice, the applicant may, when he receives the Letters Patent, file a lawsuit for indemnification for losses and damages, which may be accounted for as of the date of publication of the patent. In this case, early publication is useful for purposes of determination of such date. However, as established in the first paragraph of article 44 of the LPI, if the infringer obtains knowledge of the content of the filed application even before its publication, the indemnity must consider the start date of the exploration.
Is it possible to speed up the examination of my patent application?
There are different ways to have a faster response from INPI. For that, your patent application must fall into one of the eligible categories of Priority Procedure, such as Elderly Depositor, Depositor MEI, ME or EPP, Depositor accuses third parties of counterfeiting, Green technology, Technology for health treatment etc. See here the complete and updated list of modalities, as well as their procedures.
Although the "Preliminary Opinion on Patentability" does not speed up the examination of the application itself, it allows the depositor to obtain a search and an advance preliminary assessment of his application. If the result of the Preliminary Opinion is positive, it indicates that the application has a high chance of being granted and becoming a patent. If it is negative, it allows the depositor to make the necessary changes to the application to increase the chances of the application being granted. Find out more about the Preliminary Opinion here.
Is there a risk that one of INPI’s employees reveals to third parties the invention or the model of an application being examined?
No. All applications are examined with the strictest confidentiality during the period of eighteen months (except in case of early publication requested by the applicant) until the period for publication in the Revista de Propriedade Industrial – RPI (INPI’s Gazette).
What are the benefits of the patent system for the society?
Basically, the system promotes the progress of the technique for two reasons: the guaranteed protection of the investments made is an incentive for the inventor to continue his research; and, secondly, it encourages his competitors to look for technological alternatives to reach the market without the need for licenses of commercial exploitation of patents.
With the dissemination of the invention by the patent document, the society benefits with the knowledge of a technology that otherwise would have been a trade secret.