TerraLex Cross Border Patent Guide

Brazilian patent laws are compliant and consistent with the international treaties and conventions that regulate the subject, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the Patent Cooperation Treaty (PCT). Patent protection in Brazil is regulated under Law No. 9,279/96 ("Brazilian Industrial Property Law") and is contingent upon registration of relevant work with the Brazilian Patent and Trademark Office (known by the acronym "INPI"). To be eligible for patent protection, a work must fulfill the prerequisites of novelty, inventiveness, and eligibility for industrial use.

According to the Brazilian Industrial Property Law, when an invention or utility model results from a work contract executed in Brazil, it belongs exclusively to the employer. Otherwise, if the invention or utility model results solely from the personal contribution of the employee without using the employer's resources, data, or means, then the ownership belongs exclusively to the employee. Finally, in cases where the invention or utility model results from the joint contribution of the employee and the employer's resources, data, or means, ownership is considered common.

The Brazilian Industrial Property Law allows for the protection of both processes and products in a wide range of technological areas. To do so, they must meet the criteria of novelty, inventiveness and industrial applicability, as defined by Brazilian Industrial Property Law. There are currently two types of patent: invention patent, intended to protect technical creations that solve problems in a specific technological area, and utility model patent, intended to enhance the use of an object and may result in greater efficiency or convenience in the use thereof.

The Brazilian Industrial Property Law provides what cannot be considered an invention or utility model for the purposes of registering a patent in Brazil. These are discoveries, scientific theories and mathematical methods; purely abstract concepts; schemes, plans, principles or methods of a commercial, accounting, financial, educational, advertising, lottery and inspection nature; literary, architectural, artistic and scientific works or any aesthetic creation; computer programs; presentation of information; game rules; surgical or therapeutic methods, as well as diagnostic methods for application to the human or animal body; the whole or part of natural living beings and biological materials found in nature, or even isolated from it, including the genome or germplasm of any natural living being and natural biological processes; and series of plant and animal genetic variations.

In Brazil, software itself is not considered a patentable invention. Software is generally protected as a copyrightable creation and as so protected by the Brazilian Copyright Law (Law N. 9,610/1998) with additional regulation of the Brazilian Software Law (Law N. 9,610/1998). However, software-related inventions can be patentable in Brazil, since it meets certain requirements, such as novelty, inventiveness and industrial applicability, as established in the Brazilian Industrial Property Law.

The Brazilian Industrial Property Law does not provide for AI-generated inventions. Although, in 2022, the Brazilian Patent and Trademark Office (INPI) published, in Industrial Property Magazine No. 2696, an order, on the impossibility of indicating or naming an AI as an inventor in a patent application filed in Brazil. More recently, in August 2025, the INPI launched Public Consultation No. 03/2025 to discuss the draft "Guidelines for Examination of Patent Applications Involving Artificial Intelligence". The proposed guidelines aim to classify AI inventions into categories (such as AI-based and AI-assisted inventions) and establish clear criteria for their patentability, while reaffirming that authorship must be attributed to a natural person.

In Brazil, patent applications must be filed with the Brazilian Patent and Trademark Office (INPI) containing the following documents: specification; claims; abstract; drawings (if any); and sequence listing (only for applications in the biotechnology field). The INPI divides the application process into five phases, which are: filing of the patent application; formal examination; publication of the application; technical examination; and decision.

The process before the Brazilian Patent and Trademark Office (INPI) can change due to various factors and objections. However, the normal timeframe is two to four years before the patent is issued. The first examination takes two to three years after the application is filed.

Brazil participates in the Green Patent Program and the Global Patent Prosecution Highway (GPPH) program, which allows patent applicants to request accelerated examination.

In Brazil, to calculate the cost to file and maintain a patent is not simple, since it varies according to several characteristics of a patent. Regarding payment frequency, the owner of the patent application has to pay annual fees for the application from the 24th month after its application date until the end of the effectiveness of the patent.

The Brazilian Industrial Property Law provides that to qualify for patent protection, inventions must be susceptible of industrial application, a novelty (not found in the state of the art) and present development or functional improvement in the prior product or process. a. Novelty - to fulfill the novelty requirement, an invention must not be encompassed in the "state of the Art". "State of the Art" is defined as "everything that is made accessible to the public before the date of deposit of the pertinent patent application with the INPI, whether by written or oral description, by usage or by any other means, in Brazil or abroad, except for the specific cases foreseen under the Brazilian Industrial Property Law". b. Inventiveness - a patent is deemed inventive whenever it is not considered, by a technician on the matter, as an obvious or evident result of the "state of the art". c. Industrial Use - an invention is considered eligible for industrial use whenever it may be used or produced in any type of industry.

The patent owner has the exclusive right to use and explore the patented invention within the scope of the law. This means that only the patent owner can manufacture, use, offer for sale, sell or import products incorporating the patented technology. It also gives the patent holder legal protection rights and the ability to enforce these rights against infringers.

The patent inventor has the right to be recognized as the inventor of the product or process patented and to receive fair remuneration for the use of the patent.

In Brazil, the duration of patent registration is 20 years for inventions and 15 years for utility models, from the date the application is filed, subject to the payment of renewal fees and the conclusion of the examination process by the Brazilian Patent and Trademark Office (INPI).

In Brazil, there is no equivalent to the Special Protection Certificate (SPC) found in some other jurisdictions.

According to the Brazilian Industrial Property Law, the creator of an invention is entitled to obtain a patent ensuring ownership of the invention. However, if two or more authors have made the same invention independently, the right to obtain the patent will be guaranteed to the one who proves the earliest filing, regardless of the dates of invention or creation, according to the first-to-file principle.

According to the Brazilian Industrial Property Law, when it comes to an invention made jointly by two or more persons, the patent may be applied for by all or any of them, with the naming and qualification of the others. However, the Brazilian Industrial Property Law does not provide specific provisions regarding the co-ownership regime of patents, with the Brazilian Civil Code (Federal Law N. 10.406/2002) being used as a supplementary interpretative basis on the subject. In this sense, each co-owner of the patent must contribute to the maintenance of the patent, with the freedom to exploit the patented invention, but must obtain authorization from the other co-owners in the case of licensing to third parties.

In Brazil, the transfer, assignment, or licensing of patents follows certain steps and formal requirements to ensure validity and enforceability. To validly transfer or assign patent rights, parties must execute a written agreement specifying the details of the transfer, including the identification of the patent being transferred, the rights being transferred, and the terms and conditions of the transfer. Additionally, to ensure the effectiveness of the transfer, it is advisable to register the transfer with the Brazilian Patent and Trademark Office (INPI). Although registration is not a mandatory requirement for the validity of the transfer, it serves as evidence of the transfer and provides priority over subsequent conflicting transfers. Similarly, to license a patent, parties must enter into a written license agreement outlining the scope of the license, including any limitations or restrictions on use, the duration of the license, and any royalty payments or other financial considerations. Like transfers, it is recommended to register the license agreement with the Brazilian Patent and Trademark Office (INPI) to provide evidence of the license and priority over conflicting licenses.

According to the Brazilian Industrial Property Law, direct infringement of patent rights occurs when a third party, without authorization from the patent owner, produces, uses, offers for sale, sells or imports a patented product or process.

According to the Brazilian Industrial Property Law, indirect infringement of patent rights encompasses acts that contribute to or facilitate the direct infringement by others, even if the infringer does not directly engage in prohibited activities.

The Brazilian Industrial Property Law expressly provides for the possibility of establishing infringement through "means equivalent to the subject matter of the patent". However, the Brazilian Industrial Property Law does not provide for the definition of "equivalent means", so the law lacks objective parameters for analysis. Thus, in the absence of objective criteria, the analysis of whether an infringement is based on equivalence usually presents varied criteria.

The Brazilian Industrial Property Law provides that a patent holder may not prevent a third party from producing, using, putting on sale, selling or importing in the following cases: on a private and non-commercial basis, provided that they do not harm the economic interest of the patent holder; for experimental purposes, related to scientific or technological studies or research; for preparation of drugs according to a medical prescription for individual cases; when a product is manufactured according to process or product patent that has been placed on the domestic market directly by the patent holder or with their consent; in the case of patents relating to a living matter, use the patented product, without economic purposes, as an initial source of variation or propagation to obtain other products; in the case of patents relating to a living matter, use, circulate, or market a patented product that has been lawfully introduced into the market by the patent holder or the license holder, provided that the patented product is not used to commercially multiply or propagate the living matter in question; intended exclusively to produce information, data, and test results, aiming at obtaining a trade license in Brazil or any other country, for the exploitation and sale of the patent-protected product, after expiration of the time limits legally set.

In Brazil, there are several remedies, both civil and criminal, against patent infringements. Among the most common civil remedies available is preliminary or permanent injunction to cease the infringement under penalty of a daily fine, seizure and/or destruction of products and materials involved in infringements, removal of the infringing products from the market, and payment of damages for lost profits and moral damages. Furthermore, the criminal remedies include preliminary criminal search and seizure measures, imprisonment and fines.

The validity of a granted patent may be challenged before the Brazilian Patent and Trademark Office, either because it does not constitute patentable subject matter or because it fails to meet another legal requirement, through an administrative nullity proceeding, within six months of patent grant. Also, at any time during the term of the patent, any party with a legitimate interest may bring a patent nullity action before the federal courts regarding the validity of the granted patent.

Infringement and patent validity are not decided in the same proceeding, since actions related to patent infringements are filed before the state courts, while actions related to the validity of patents are filed before the federal courts because the Brazilian Patent and Trademark Office (INPI) is an indispensable party in these actions.

There is a preliminary injunction proceeding provided, allowing trial court judges to order: the stop of using or selling a patented product or process; to determine searches and seizures; and/or the recall of the infringing products. The prerequisites that grant a preliminary injunction are the probability of the right and the danger of damage or risk to the useful result of the process. Regarding the procedure, the preliminary injunction differs from other actions due to its need for prompt presentation of evidence, to prove its prerequisites for granting, which also provides more celerity in its analysis in the courts.

The Brazilian Industrial Property Law provides the specific conducts that constitute criminal infractions, though it does not specify special rules for the processing of their criminal prosecution. The Code of Criminal Procedure (Decree-Law N. 3.689/1941) establishes that crimes against patents require a complaint by the interested party for initiating criminal prosecution. The sanctions applicable to those crimes may include preliminary criminal search and seizure measures, imprisonment and fines.

The Brazilian Industrial Property Law provides that the aggrieved party is entitled to recover losses and damages in compensation for losses caused by the violation of patent rights. Usually, damages are determined by different criteria, such as the benefits that an injured party would have received if the patent infringement had not occurred; the benefits received by the infringer; or the royalties that the infringer should have paid to use the patent in accordance to law. Regarding liability, the Brazilian Industrial Property Law provides that anyone who, directly or indirectly, induces or assists in an infringement may be liable for it.

The limitation period for claiming damages for a patent infringement is five years of the infringing act. Also, the limitation period for filing injunctive measures is ten years, although this deadline remains unsettled.

In Brazil, the estimated legal costs for patent litigation can vary significantly depending on various factors such as the complexity of the case, the duration of the proceedings, and the fees charged by legal professionals involved. Generally, patent litigation involves expenses related to court fees, attorney fees, expert fees, and other necessary expenses such as travel costs and document processing fees. Regarding the recovery of legal costs, Brazilian law allows for the reimbursement of these costs by the unsuccessful party in patent infringement actions. The successful party is typically entitled to recover a significant portion of their legal costs, including attorney fees and court fees. However, the exact percentage of costs that will be recovered by the successful party can vary depending on the specific circumstances of the case and the discretion of the court. In some cases, the successful party may be able to recover a substantial portion of their legal costs, while in others, the recovery may be limited.

In Brazil, patent proceedings can vary significantly in duration depending on factors such as the complexity of the case, the workload of the court, and the conduct of the parties involved. On average, a patent proceeding in the Brazilian judicial system may take several years to reach a final decision, with timelines often ranging from two to five years or more.

According to Brazilian customs regulations (Decree N. 6.759/2009), Brazilian customs authorities must actively prevent illegal items from entering Brazilian territory. The customs authorities can conduct surveillance and initiate ex officio seizure procedures in cases regarding patent infringing products being imported or exported.

The main recent development regarding patent law in Brazil occurred in July 2025, when the Brazilian Patent and Trademark Office (INPI) published the "Patent Forfeiture Manual" (Manual de Caducidade). This document provides technical guidelines and procedural clarity regarding the forfeiture of patents due to lack of exploitation or non-use in Brazil (Article 78 of the IP Law), increasing legal certainty regarding this mechanism.

Another relevant development was the implementation of the INPI's new Schedule of Fees, which came into force in August 2025 (Portaria MDIC No. 110/2025). The update reorganized service codes and values, aiming to simplify the payment process for users and align the institute's revenue with its operational costs.

One of the developments expected for the next years is the publication of the final guidelines for patent applications involving Artificial Intelligence examination by the Brazilian Patent and Trademark Office (INPI). Following the Public Consultation opened in 2025, the INPI is expected to consolidate the contributions and issue definitive regulations that will guide the examination of the growing number of AI-related patent filings in Brazil.

Another development expected for the next few years relates to changes in Brazilian Industrial Property Law. In recent years, proposed legislative changes to the Brazilian Industrial Property Law to address emerging issues and align with international best practices, including amendments related to patent term extensions, compulsory licensing provisions, or measures to streamline patent prosecution and enforcement processes.

Yes, there is a filing fee payable to the Brazilian Patent and Trademark Office (INPI) upon the submission of the application. As of the latest fee schedule (effective August 2025), the standard filing fee for an invention patent is BRL 380.00. However, specific entities such as individuals, micro-enterprises, and non-profit institutions may be eligible for a discount of up to 50% on this fee.

It is important to note, however, that the cost of obtaining a patent in Brazil goes beyond the initial filing fee. The prosecution process involves other significant official fees, most notably the request for examination (which varies depending on the number of claims), annual maintenance fees (annuities) payable starting in the 24th month from the filing date, and fees associated with the submission of documents or compliance with official requirements throughout the process.