Bill Proposing PTA For BRPTO Delays Advances In Brazilian Congress

The proposal seeks to address the regulatory gap created following the Brazilian Supreme Court’s decision in Direct Unconstitutionality Action (ADI) #5,529, which invalidated the former sole paragraph of Article 40 of the Brazilian Patent Statute that had guaranteed a minimum effective patent term after grant. According to the Rapporteur, the new framework is inspired by PTA mechanisms adopted in several jurisdictions, including the United States, and aims to compensate applicants for undue delays occurring during patent examination.

Under the substitute text, a new Article 40-A would be introduced into the Brazilian Patent Statute. The proposal establishes objective time limits for BRPTO actions during examination, including:
 

• 24 months for the first substantive office action after the request for examination;
• 6 months for subsequent BRPTO actions following an applicant’s response; and
• 60 months for a final decision counted from the request for examination.

For each day of unjustified delay attributable to the BRPTO beyond those deadlines, the patent term would be extended by one additional day. The adjustment would be capped at five years and would not apply to delays caused by the applicant, judicial orders, force majeure events, or other circumstances not attributable to the Office. The substitute text also provides that the BRPTO would calculate the adjustment on its own initiative at the time of grant, subject to review upon request by the interested party.

An additional provision would allow owners of patents already granted and still in force to request an adjustment if the BRPTO delay had previously been challenged in court before the law’s enactment. Such requests would have to be filed within 60 days after the law takes effect. 

The Rapporteur’s Opinion highlights that comparable PTA systems exist in jurisdictions such as the United States, Japan, South Korea, China, Canada, Mexico, and Chile. The proposed Brazilian model, however, would be limited to delays attributable to the BRPTO and would not compensate for regulatory delays associated with market approval procedures. 

The substitute text is currently open for amendments by Committee members, and the amendment period began on August 13. Following this stage, the proposal will be considered by the Committee before moving forward in the legislative process.

The original Portuguese bill is available here. 

On August 11, 2026, the Committee on Industry, Commerce, and Services (CICS) of the Brazilian House of Representatives received the Rapporteur’s Opinion on Bill #5,810/2025, which proposes the creation of a Patent Term Adjustment (PTA) mechanism to compensate patentees for administrative delays attributable to the Brazilian Patent and Trademark Office (BRPTO). The Rapporteur, Representative Adriana Ventura, recommended approval of the bill in the form of a substitute text.