As discussed in a previous post, the Brazilian National Institute of Industrial Property (INPI) recently announced a Green Patent Fast Track designed to provide accelerated examination of patent applications related to “Green” technology in Brazil. 

At first glance this looks like an admirable step towards incentivising the development and commercialisation of Greentech in Brazil.  Unfortunately, the reality is that the INPI has implemented a restricted programme that appears to be of limited use in accelerating technologies owned by non-Brazilian applicants.

The programme is restricted because it is limited to only “National” patent applications.  By this, the INPI means a patent application that is not a “PCT national phase” application.  

More particularly, the programme only covers applications originally filed in the INPI, or filed as a Paris Convention application in the INPI within one year of the original priority filing. 

It is likely that the vast majority of patent applications for green technologies would be made internationally via the PCT International system and therefore excluded from Brazil’s fast track programme. 

The programme therefore appears to be directed more at developing the domestic Greentech industry rather than assisting with the protection of green technologies in general. 

It is an open question whether the boost to the domestic Greentech industry outweighs the economic benefits that could have been provided by also encouraging commercialisation and investment from the overseas Greentech industry. 

That being said, any expedited examination in Brazil is a welcome development.  There is a large backlog of unexamined applications in Brazil and the average time before a patent is examined by the INPI is over five years.  This is the slowest average examination period of any of the major economies.  

Additionally, Brazil has one of the lowest patent grant rates in the world – just 2 percent of Brazilian basic patent applications were granted between 2001 and 2010.  When compared with China (22 percent) and India (19 percent), it is clear that grant of your patent application is Brazil is far from a foregone conclusion. 

The delay and difficulty in obtaining a patent in Brazil is likely to be a major turn-off for overseas Applicants.  A Greentech pioneer from overseas is unlikely to seek to introduce its product to a market where the possibility and degree of protection is so uncertain. 

By considering only national applications, it is likely that the delays at INPI will continue to discourage the development and commercialisation of overseas Greentech in Brazil.  Also, local competitors seeking to commercialise similar technology may be discouraged by the uncertainty of whether their product will infringe any patent that is finally granted.

As mentioned above, applicants from abroad do have the opportunity to make use of the programme if they file a Paris Convention application in Brazil prior to 12 months from the priority application filing date.  This option could lead to a surge in Convention applications into Brazil but would only be practical if sufficient funds are available and Brazil is known to be a viable future market for the invention at this early stage. 

While cynics may argue that INPI’s new Green Tech Fast Track is more about domestic economics than saving the planet, even a small step towards development of green technologies is better than no step at all. 

*Dr. Tim Stirrup is a Patent Attorney with Baldwins Intellectual Property in New Zealand and represents a number of clients in the Greentech sphere.

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