The Brazilian Patent Office (BRPTO) published on 30 March 2023 the annual report for the year of 2022 disclosing several performance indicators, including goals for the future and how those goals are being met. Among all provided information, we may find some interesting patent figures reflecting the patent activity in Brazil in 2022.
A total of 27139 applications was filed in Brazil in 2022. When we consider the nationality of Applicants, the United States is still leading the number of patent applications, being responsible for 28.6% of total filings. The USA is followed by Brazil (24.8%), China (6.0%), Germany (5.9%), Switzerland (4.8%), Japan (4.1%), France (3.3%), the United Kingdom (2.7%), Italy (2.1%) and the Netherlands (1.9%). It is remarkable the increasing presence of China among the top Applicants, which did not appear in the top 10 nationalities in a recent past. With respect to Brazilian Applicants only, applications filed by individuals still represent the biggest share (43.4%). It is followed by Brazilian companies (22.5%), universities (16.8%) and smaller companies and associations (17.3%).
When it comes to patent backlog, the BRPTO reported a reduction of 22% of the pending application time compared to 2021 and of 9% for applications that received a prioritized examination. That corresponds to an average period of 3.9 years and 8.1 months respectively. However, it is important to provide some context to said numbers.
The average 8.1 months for fast-track examination corresponds to the time between the fast-track acceptance and the final decision either accepting or rejecting the patent application. So, it is indeed possible to obtain a patent in Brazil in less than one year provided that Applicant proceeds with the substantive examination request and the fast-track request shortly after filing of the patent application. There are several fast-track possibilities Applicants could exploit.
On the other hand, the number of 3.9 years, for applications that received no fast-track examination, does not correspond to reality. For obtaining this number, the BRPTO measured the time between the substantive examination request and the final decision. However, the BRPTO does not prioritize examination of pending applications based on the date substantive examination is requested, but rather on the date the applications are filed. 3.9 years is not the backlog Applicants should expect if they request substantive examination shortly after filing the application, for example. When we consider the actual backlog, that is, the time between filing of a patent application and issuance of a final decision, we obtain the following:
Patent Backlog - Source: BRPTO's database
The brighter red part of the columns corresponds to the time Applicants should expect to receive a first office action. The darker red part corresponds to the time taken for a final decision after issuance of the first office action. Therefore, the backlog in 2022 was of 7.17 years. The BRPTO is still evolving as backlog for 2023 is currently of 6.42 and decreasing.
The BRPTO's efforts to reduce backlog is evidenced in the following graph:
Number of applications pending – Source: BRPTO's 2022 Annual Report
Compared to August 2019, the BRPTO managed to reduce the number of applications pending in 92% in around three years. This reduction naturally results from an increasing number of decisions, as follows:
Number of filings (green line) vs. number of decisions (orange line) – Source: BRPTO's 2022 Annual Report
This graph shows two interesting indicators. The first one is that the number of new patent applications remained virtually steady along the past 5 years. The second one is the increasing number of decisions since 2019, which is precisely the year when the BRPTO started its program to combat backlog.
As a result of substantive examination, some patent applications may be firstly rejected by the BRPTO. To said rejections, Applicants can still appeal. The BRPTO also informed that the average time for an appeal to be decided was of 35 months in 2022. That represents an increase when compared to 2021 (31 months) and 2019 (24 months). This increase may be a natural consequence of the reduction of the patent backlog, as a larger number of applications are being decided per year.
In sum, although there is still plenty of room for improvement, the BRPTO’s 2022 Annual Report shows indications for a certain degree of optimism.
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