BRAZIL
August 01, 2017
The Brazilian Patent and Trademark Office, which has been long since notorious for its decade long backlog of workloads in patent granting, has staked a landmark decision to award a preliminary injunction to a pharmaceutical company. The Court of Appeals considers that there may be cases in which future damages may not be enough to prevent irreparable damage and has allowed an interim injunction based on a patent application. This may set the precedent for other cases to be reviewed and processed on a more expeditious basis.
Also, a Court has recently issued a resolution requesting the Patent Office to examine a patent application which had remained more than 10 years without having been examined. The Court indicated that also the Patent Office is subject to the constitutional principle of reasonable duration of administrative processes. This is an avenue available to patent applicants which, although not exempt of costs, may help circumventing the tremendous back-log at the Brazilian Patent Office.
Finally, it has been long since the country has been exploring measures to reduce the considerable back-log in the examination of patents. Rumor has it that the Government may present shortly a plan to reduce substantially this back-log by, presumably, set forth a simplified process by which unopposed applications filed before 2014, which are not being examined, could be granted. Apparently, pharmaceutical applications would not be suitable to this enjoy this simplified process. Presumably, again, the system would have an opt-out clause and third parties would have the possibility to file oppositions. We will follow up this closely, as it would not be exempt of problems, even though the final goal is something long expected in the sector.