Brazil: Patentability requirements for inventions related to transgenic plants

Patentability requirements for inventions related to transgenic plants

The Brazilian Patent and Trademark Office (PTO) issued technical note BRPTO/CPAPD No 01/2023 on May 9, 2023, intending to provide technical rules to be followed by PTO examiners when analyzing the patentability of inventions linked with transgenic plants; particularly, to processes of genetic transformation, known as elite events.

Related Background: According to the provisions of Article 10 (IX) of the Brazilian IP Law # 9,279/96, natural living beings (animals and plants), in whole or in part (such as cells), as well as biological material, when found in nature or isolated therefrom, are not considered to be inventions. Further, Article 18 (III) of the IP Law excludes from patent protection natural living beings, in whole or in part, even if modified/recombinant – it is only possible to seek protection for transgenic microorganisms.

Since the current Biotechnology Guidelines do not fully cover this matter, the Brazilian PTO published a first technical note in March 2022 clarifying the patentability requirements for inventions related to transgenic plants, particularly transgenesis processes, which are named elite events, and issued a Public Consultation to review such subject matter.

The current Technical Note commented herein is the outcome of Public Consultation No. 01/2022, in which opinions and recommendations from users were received and analyzed by the Expert Technical Group.