What are the criteria for patentability in your jurisdiction?

A creation must first be considered an invention or utility model. There is no statutory definition of ‘invention’, although the Brazilian Patent Statute does provide a list of what is not an invention. A ‘utility model’, on the other hand, is defined as an object of practical use or a part thereof.

To be patentable, an invention must meet the requirements of novelty, inventiveness and industrial applicability. Utility models share the same requirements of novelty and industrial applicability, but the level of inventiveness required for utility models is lower than that required for inventions.

What are the limits on patentability?

The Patent Statute stipulates that the following are not considered to be inventions or utility models and are therefore unpatentable:

  • discoveries, scientific theories and mathematical methods;
  • purely abstract concepts;
  • schemes, plans, principles and methods of a commercial, accounting, financial, educational, publishing, lottery or fiscal nature;
  • literary, architectural, artistic and scientific works and aesthetic creations;
  • computer programs per se;
  • presentations of information;
  • rules of games;
  • operating or surgical techniques and therapeutic or diagnostic methods for use on the human or animal body; and
  • natural living beings, in whole or in part, and biological material, including the genome or germ plasma of any natural living being, when found in nature or isolated therefrom, and natural biological processes.

Are there restrictions on any other kinds of invention?

Yes, the Patent Statue sets out additional limitations on patentable subject matter. The following are not patentable:

  • inventions that are contrary to morals, good customs or public security, order or health;
  • substances, matter, mixtures, elements or products – as well as the modification of their physical-chemical properties and the respective processes of obtaining or modifying them – that result from the transformation of the atomic nucleus; and
  • living beings, in whole or in part, except transgenic micro-organisms that meet the three patentability requirements (ie, novelty, inventiveness and industrial applicability) and are not mere discoveries. The Patent Statute defines ‘transgenic micro-organisms’ as organisms (except the whole or part of plants or animals) which exhibit, due to direct human intervention in their genetic composition, a characteristic that cannot normally be attained by the species under natural conditions.

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