In view of the success in the plan to reduce the backlog of patent applications pending examination, on March 30, 2021, the BRPTO published Rule No. 21/2021.
Said rule extends the Project of Backlog Fighting, with issuance of Preliminary Office Actions essentially along the same lines as before, now applied to patent applications filed between 01/01/2017 and 12/31/2017.
Rule No. 21, therefore, establishes the requirements for a patent application to be qualified to receive a Preliminary Office Action as follows:
- No technical examination initiated by the BRPTO;
- No other participation of fast track examination program from the BRPTO;
- No third parties or ANVISA (the Brazilian Regulatory Agency, similar to the FDA in the United States) observations suffered;
- Corresponding patent application with prior technical search conducted by Patent Offices in other countries, International or Regional Organizations; and
- Filling date between January 1, 2017 until December 31, 2017.
When complying with the Preliminary Requirements, the Applicant must:
1. Present arguments that demonstrate the irrelevance of the prior art documents mentioned in the search report, based on the examinations carried out by the Foreign Offices, and/or, if applicable,
2. Present a new set of claims adapted to the aforementioned prior art.
At this first moment, the preliminary office action does not contain technical opinion, but merely states the prior art documents detected in searches carried out by counterpart patent offices, as an opportunity to expedite the prosecution of the Brazilian patent application.
Applicants will have 90 days from the date of the notifications published in the weekly editions of Industrial Propriety Gazette (RPI) to comply with the Preliminary Office Action within the aforementioned period, under penalty of definitive shelving of patent applications by the BRPTO.
Rule No. 21/2021 came into effect on April 1, 2021.
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