The Brazilian Government is considering an emergency measure to eliminate the Patent Office’s chronic backlog problem by automatically granting 230,000 pending applications by 2020. The Government labelled this proposed emergency measure an “extraordinary solution” for the problem, and a draft of the plan will be introduced for public discussion soon.
The current proposal entails a simplified examination procedure in which the Patent Office would automatically grant unopposed applications filed before 2014 but yet to be examined by them. This measure, however, does not include either pharmaceutical applications or divisional applications where the parent application has been examined.
This “extraordinary solution” does have an at-will applicant opt-out clause and interested third parties would have up to 90-days to file pre-grant oppositions after an application is pre-approved for an automatic grant. This measure is already spurring controversy. On one hand, some argue that the backlog would come to an end, but on the other hand, some patent practitioners fear that patents granted under this measure would be more vulnerable to invalidity challenges both before the Brazilian PTO and the Courts.
The Brazilian PTO currently relies on 324 examiners, whose productivity per capita has increased in recent years. In 2017, it is estimated that each examiner will examine an average of fifty-five applications. Without the measure under discussion, the Brazilian PTO would take thirteen years to unclog the backlog. Even if the Brazilian PTO doubles the current headcount, it would still take eight years to eliminate the backlog, but this option would involve substantial costs, in addition to a high level of idle capacity subsequent to the eight-year period.