Recently, the event Innovation, Patents, and the Debates in the Legislature discussed proposals to introduce a mechanism that would restore the term of patent protection when the Brazilian Patent and Trademark Office (BRPTO) fails to comply with its own deadlines in examining applications (a mechanism known as “PTA”). These proposals are the subject of several bills.
The BRPTO has spoken out against the introduction of a PTA, rejecting the proposals regardless of the rules under which such a mechanism would operate. According to the Office, a PTA would not be necessary, since its current average time for examining patent applications is 3 years and 4 months¹—meaning that, as the BRPTO would never be delayed, there would be no need for any adjustment.
It is true that the BRPTO’s current average pendency is significantly better than at the peak of its examination backlog, when substantive examination[1] took nearly eight years to be completed. However, if the BRPTO’s argument had merit, the major patent offices around the world—whose average examination times are even shorter[2]—such as Japan (approximately 1 year and 1 month), China (approximately 1 year and 3 months), and the United States (approximately 2 years and 2 months), would not have PTA mechanisms. Yet these countries adopted PTA precisely to ensure that any delay attributable exclusively to the patent office does not unduly prejudice inventors and patent holders.
No one takes out car or life insurance expecting the worst to happen, but if it does, it is good to be protected. This logic applies perfectly to BRPTO’s current situation. Even if the BRPTO currently has a reasonable average examination time, the scenario may change tomorrow. According to the BRPTO’s own data,[3] while the number of patent filings has remained relatively stable (an average of 27,919 applications over the past four years[4]), the volume of decisions issued by the Office has been declining (from 46,704 in 2021 to 25,525 in 2025; and if dismissals are excluded and only decisions on the merits are considered, the number drops to 16,953[5]). This may indicate that the BRPTO will not be able to maintain its current average examination time.
Indeed, anyone familiar with the Brazilian public administration knows that sluggishness is a constant challenge, almost always caused by insufficient investment in the structure needed to keep up with the workload. It was precisely to ensure that the BRPTO would have the necessary resources that ABPI (IP owners association) filed lawsuit #5095710‑55.2021.4.02.5101. The favorable ruling at the trial level was upheld on March 3, 2026 by the Federal Court of Appeals For the Second Circuit (TRF‑2), ordering the Federal Government to “allocate to the BRPTO the revenues necessary to implement the plan […], carrying out the transfers in accordance with the schedule approved at the ruling enforcement stage.” This should have been good news for the BRPTO, especially since, on February 21, 2025, a piece in the business-focused newspaper Valor Econômico reported the efforts of the current BRPTO’s administration to secure additional resources in order to “overcome two common problems: lack of personnel and an annual budget below what is necessary.”[6] Curiously, however, the BRPTO appealed the decision, seeking to have TRF‑2 overturn the very ruling that guaranteed it greater resources. Without the necessary funding, the BRPTO may not be able to maintain its current average examination time.
In any event, even if the BRPTO maintains, on average, reasonable examination times, there may still be failures to meet deadlines and unreasonable delays in specific cases. Even today, there are applications for which the BRPTO takes more than four years to issue the first official action.[7] If, for example, the BRPTO rejects such an application and the applicant files an administrative appeal, considering the Office’s average time for deciding appeals (approximately 4 years and 6 months[8]), the total time to grant may exceed ten years. In the absence of a PTA mechanism, the inventor and the patent holder would be penalized for delay and error attributable to the BRPTO.
A PTA mechanism exists precisely to address exceptional situations and to ensure that patent holders enjoy a minimum reasonable period to exploit their invention once the patent is granted. In the United States, for example, approximately 40% of granted patents receive no adjustment at all, and in approximately 75% of cases, the adjustment is close to one year[9]. If the BRPTO maintains its current average examination time, it is likely that no patent would receive an adjustment, or, if it did, the adjustment would be minimal. So, then, what is the problem with introducing PTA?
The mechanism would fill the gap left by the Brazilian Supreme Federal Court’s (STF) decision in the Constitutional Challenge (ADI) #5,529, which declared unconstitutional the sole paragraph of Article 40 of Law #9,279. The BRPTO claims that PTA would “circumvent the effectiveness” of the decision rendered in ADI 5,529. However, the PTA models proposed in the bills were designed precisely to address the concerns identified by the STF with respect to the unconstitutional provision. PTA would not be automatic, as it would depend on a request by the patent holder; it would not be arbitrary, as it would be conditioned on delays exclusively attributable to the BRPTO, defined by the days exceeding the deadlines established by the Office itself; nor would it generate unpredictability, since, after the BRPTO issues regulations defining the deadlines and the method for calculating the adjustment, it will be entirely possible to foresee a potential adjustment—years in advance—by monitoring the prosecution of the patent application, which can be done by any interested party through the BRPTO’s website. In the United States, there is even a calculator on the USPTO website that allows one to determine how much adjustment a patent may receive.[10]
Accordingly, there is no incompatibility whatsoever between a PTA mechanism and the STF’s decision in ADI 5,529. In fact, the STF itself highlighted the superiority of PTA mechanisms over the now-extinct rule of the sole paragraph of Article 40. And when patent holders turned to the courts seeking PTA‑type adjustments for patents granted after substantial delays, the STF itself stated that the introduction of such a mechanism “requires objective criteria set out in law.”[11] The bills are therefore merely following that guidance.
The purpose of PTA is to ensure that, should the BRPTO fail to meet its deadlines and cause unreasonable delay, the patent holder retains a reasonable period to exploit the invention after the patent is granted. This is because only after grant can the holder exercise the core right conferred by a patent: preventing third parties from exploiting the patented invention (Article 42 of Law #9,279). Before grant, it is not possible to exercise this right, as already recognized by court decisions.[12] This is why, since the very first patent statute in Brazil—the Royal Charter of April 28, 1809—there has always been concern with ensuring a reasonable period for exploitation of the invention after patent grant. And when dealing with a deliberate infringer—which is the majority of cases, since patents are rarely infringed “by mistake”—only the effective exercise of this right, with the assistance of the Judiciary, truly protects the patent holder. Those who represent patent holders know that the provision of Article 44 of Law #9,279 offers little deterrence. An infringer has already assumed the risk of infringement and will not be dissuaded by the prospect of damages that will only be determined many years later, after a final, unappealable decision on the merits of the infringement action and the conclusion of the calculation phase, which will set the amount payable based on one of the three criteria provided for in Article 210 of Law #9,279 (a fact that, in itself, illustrates the complexity of the calculation). That is assuming, of course, that the infringer is still solvent so many years down the line.
When it comes to innovation and the ability to make new technologies available to the population, the decision whether or not to adopt PTA defines the kind of country we choose to be. The decision should be to move closer to countries that rank higher in innovation indices, have more advanced healthcare systems, developed economies, and are home to a multitude of innovative companies—such as the United States, Japan, and China. All of them have PTA mechanisms, even though they operate well‑structured and efficient patent offices. Why not Brazil?
