Authored by: Adriano Bedin, Master in business law
Attorney at Creazione Marcas e patentes, Industrial Property Agent
The protection of industrial property rights in Brazil is effected by means of the granting of patent of inventions, utility model patents and industrial design registrations.
A Patent of Invention protects a new solution to a technical problem and can refer to products or processes. Creations that do not have a defined physical form can only be protected as inventions, such as chemical compositions, industrial processes and methods, genetic modifications of transgenic organisms and food mixtures. This kind of patent will be valid for 20 years from the filing date.
A utility model patent protects modifications in an object of practical use, resulting from a new shape or arrangement of elements that result in a functional improvement in its use or manufacture. This type of patent is valid for 15 years from the filing date.
The requirements for granting a patent of invention are novelty, inventive activity and industrial application. These requirements correspond in the US system to novelty, inventive step and utility.
The requirements for granting a utility model patent are novelty, industrial application, inventive act, and functional improvement. The difference between inventive activity and inventive act is just the degree of the required inventive step. An invention must foresee a new way of working and a utility model has only to improve a functionality that already exists. Generally speaking, a utility model is considered a minor advance in the art rather than an invention; because of this the requirements are less stringent. It is easier to obtain a utility model patent.
For example, if we make modifications to the shape and curvature of the blades of a boat propeller and obtain a more efficient propeller we can file an application of a utility model patent. On the other hand, if we replace the boat’s propeller with a different solution to move the boat – such as a hydraulic turbine – we can file an application for a patent of invention.
Patents of invention:
Two different patented solutions for reproducing images:
- Cathode ray tube – generates images by directing an electron gun.
2. Plasma screen – generates images by causing the transformation of trapped gases inside plasma glass plates.
These are two different technologies for the same purpose. Each technology is based on different functional principles, so they are two different solutions and two different inventions.
On the other hand, a utility model changes the shape of an existing object to make it more efficient or practical for the user, as we can see in the following examples.
- New shape applied to a brick that improves its fixation.
2. New shape applied to a feed package that improves product dispensing.
There are also a number of innovations that are not eligible for patent protection in
(a) schemes, plans, principles or methods of a commercial, accounting, financial, educational, publishing, lottery or fiscal nature;
(b) computer programs per se;
(c) rules of games;
(d) operating or surgical techniques and therapeutic or diagnostic methods, for use on the human or animal body;
(e) natural living beings, in whole or in part, and biological material, including the genome or germ plasm of any natural living being, when found in nature or isolated therefrom, and natural biological processes;
(f) substances, matter, mixtures, elements or products of any kind, as well as the modification of their physical-chemical properties and the respective processes of obtaining or modifying them, when they result from the transformation of the atomic nucleus.
There are some exceptions or clarifications to the above exclusions as follows:
There are certain micro-organisms that can be patented in Brazil. Transgenic micro-organisms meeting the three patentability requirements, and which are not mere discoveries can be patented. Transgenic micro-organisms are organisms that exhibit, due to direct human intervention in their genetic composition, a characteristic that cannot normally be attained by the species under natural conditions.
For patent applications that originate in the United States that contain a diagnostic method, it is important to know that the definition of a diagnostic method is a method that provides a diagnosis of a disease without the need for interpretation by a health professional. If such professional is needed it is not a method of diagnosis and it can be patented.
There are computer programs that solve technical problems, for example, controlling physical variables in a machine, which, if they satisfy the patentability requirements of an invention, can be patented.
Some formal aspects of the application must also be mentioned. Patent application filings must be accompanied by drawings when they are necessary to understand the invention and the drawings are always mandatory in utility model applications. The Brazilian patent and trademark office does not accept photographs or hand sketches.
Brazil is one of the largest markets in the world and the largest economy in Latin America, which could make protecting your industrial creations in our country very important and advantageous. The costs to obtain a patent in our country are much lower than other countries in general. The government filling fee is USD 47.00, the annuity is USD 54.00, the examination fee is USD 107.00, office actions fees are USD 20.00; the fees of a qualified professional to prepare and submit the application, are, of course, additional.
We hope that this article has clarified how the patent system in Brazil works and makes it easier for you to obtain the desired protection.