Sócio, Farmacêutico, Agente da Propriedade Industrial
Sócio, Farmacêutico, Agente da Propriedade Industrialsaiba +
por Pedro Moreira
21 de abril de 2021
Patent documents represent an extremely important source of technological information, whereby activities of technological prospecting, market and competition monitoring, technological trends and routes, and R&D and innovation can be carried out, amongst others. According to the World Intellectual Property Organization – WIPO, about 70% of technological information available in the world can be found only in patent documents.
IP Offices and Organizations, by means of their public search engines and informative and educational actions, are key players in facilitating access to said technological information and its spread worldwide. They play important roles in creating favorable conditions to support the development of new eco-friendly technologies and businesses, which help to tackle pollution and environmental degradation, and support sustainability and the transition to a low-carbon economy. The WIPO’s Patentscope search engine and Green online platform can be cited for instance.
Brazil is a pioneer nation encouraging R&D and innovation of green practices and technologies, also within the Intellectual Property field.
Innovation, and the research and development that underpins it, is a costly and risky enterprise, one that few would undertake without an assurance of being able to protect results, a secure return on investment and investors for business growth.
This is where IP rights, and patents in particular, have a key role to play. Patent rights protect new cutting-edge technologies and confer on the patent holder certain exclusive rights for up to 20 years. These rights enable the person or company that holds the patent to decide who may or may not manufacture and market the protected technology without prior authorization. This gives them the opportunity to license their patented technology to others or to conclude technology transfer agreements with commercial partners thereby creating new revenue streams for their company and supporting the dissemination of these technologies in the market.
IP Offices around the world, including the Brazilian Patent and Trademark Office, recognize the key role that patents play in supporting investment in new technologies and in supporting business growth through their commercialization. But many IP Offices also face severe backlogs in unexamined patent applications, due in large part the increasing volume of patent applications. According to a Report of 2015 published jointly by the WIPO and Brazilian Patent and Trademark Office, the first decade of this new millennium showed an increase of patent filings in Brazil of about 71%, which represented an average annual growth rate of 6.1%, meaning a growth rate of 79% more than that one observed in Latin American countries, and 35% higher than the world average. Further reasons affect backlog negatively in Brazil, as for example low number of Examiners, insufficient personnel and organizational management, IT problems, and too much and confusing official regulations. A recent Report by the Brazilian Patent and Trademark Office shows that in 2018 some 207,195 patent applications were pending examination and that on average, it takes just over 10 years, from filing to grant, for a patent application to be processed. Such time lags create legal uncertainty for individuals and companies that are applying for patent protection (patent Applicants) as well as for those who are interested in licensing these new technologies. In spite of this negative scenario, concrete actions have been implemented by the Brazilian Patent and Trademark Office in the past few years, as for instance optimizations in the flow and control of processes, initiatives of automation of procedures (e.g. automatic publication of substantive examination reports, generation of publication documents), expansion and consolidation of policies to encourage productivity (e.g. home office), launch of official programs to combat backlog, and increase of international cooperation.
Recognizing the need to speed up the process, in the interest of business growth and the commercialization of new technologies, and green technologies in particular, the Brazilian Patent and Trademark Office recognized the need to develop solutions to its patent backlog problem.
As a first step, in April 2012 (by Resolution 283/2012 of April 17, 2012), the Brazilian Patent and Trademark Office piloted its “Green” Patents Program, which provides for accelerated examination for patent applications related to “green” inventions.
The Program covered technologies within the fields of alternative energy, transportation, energy conservation, waste management and agriculture, in line with the International Patent Classification’s Green Inventory.
Under the Program, eligible patent applications had to be filed with the Brazilian Patent and Trademark Office from January 2, 2011. International applications filed under the Patent Cooperation Treaty (PCT) that had entered the national phase in Brazil were not included. Among other requirements, qualifying patent applications were required to include no more than 15 claims with a maximum of 3 independent claims. The pilot ran up to April 17, 2013 and was limited to 500 patent applications.
In light of the Pilot Program’s uptake and success, in December 2016, the Brazilian Patent and Trademark Office relaunched the program (by Resolution 175/2016 of December 6, 2016), as a fully-fledged service. This time around, national patent applications and international applications filed under the PCT are eligible without restriction as to filing date.
In July 2020 (by Resolution 247/2020 of July 30, 2020), the Brazilian Patent and Trademark Office further enhanced its Green Patents Service, expanding the scope to include applications relating to sustainable agriculture and removing references to the IPC Green Inventory.
Under the Green Patents Service, green patent documents and their corresponding electronic official file wrapper can be promptly identified by means of the official stamp “PATENTES VERDES” (GREEN PATENTS).
Since its inception in 2012, nearly 870 patent applications have been filed under the Brazil’s Green Patent Service (total requests per year):
2012 – 47
2013 – 119
2014 – 150
2015 – 121
2016 – 55
2017 – 146
2018 – 114
2019 – 93
2020 (up to April) – 24
The big fall in 2015 and 2016 shown above can be explained by the great crisis experienced in Brazil, perhaps the worst crisis in the last 50 years. The Country recorded a contraction in the economy, faced a drop in GDP, and underwent a strong political chaos. Brazil did not grow, lost its investment grade, and inflation was at the ceiling of the target. The melting of the international price of commodities in 2015 aggravated this scenario.
Brazilian Applicants including local affiliates of foreign entities are the biggest users of Brazil’s Green Patent Service. The vast majority of applications have been filed by private companies and individuals (total requests per country of origin and total requests per type of Applicant):
BR – 642
CN – 83
NL – 26
DE – 18
FR – 15
SE – 13
CH – 12
KY – 8
DK – 6
AR – 5
VG – 5
UK – 5
MX – 4
LU – 3
LB – 3
KR – 2
Others – 19
Science/research entities – 30 (3,5%)
Universities/education entities – 98 (11,3%)
Individuals – 327 *37,6%)
Private companies – 414 (47,6%)
Chemistry was the technical field with greater number of requests (technical fields %):
Chemistry – 51%
Mechanical engineering – 27%
Others – 11%
Electrical engineering – 8%
Instruments – 3%
Patent applications processed under the Green Patent Service are given priority status when it comes to patent examination but are subject to the same substantive analysis by Brazilian Examiners as regular applications. To date 34% of applications received have been denied access to the priority services; 38% of all applications have been accepted; 27% of the applications are pending examination; and a very low rate of 1% at which qualifying applications are abandoned.
Expedited examination of patent applications for green technologies offered by the Brazilian Patent and Trademark Office has been effective in significantly reducing the timeframe for processing qualifying patent applications. The database of the Brazilian Patent and Trademark Office shows that in 2020 grant decisions were taken within a period of 6 to 42 months (0.5 to 3.5 years) of the request for expedited examination.
The Green Patents Program is making it easier for individuals and companies in the green tech space to protect and commercialize their technologies. That’s good news for business and it’s even better news for the environment. We all benefit from research and development that focuses on new green technologies and their commercialization.