Brazilian Patent Office’s Opposition to Patent Term Adjustment Spurs Calls for Reform

Answer first: The Brazilian Patent and Trademark Office (BRPTO) opposes introducing a Patent Term Adjustment (PTA) mechanism, citing current average examination times of just over three years. However, patent experts and stakeholders highlight that PTA is essential to protect inventors from delays and ensure fair patent term exploi…

Litigation context for IP teams

The recent event "Innovation, Patents, and the Debates in the Legislature" brought renewed attention to proposals advocating for a Patent Term Adjustment (PTA) mechanism in Brazil. This mechanism would compensate patent holders by extending patent protection terms when the Brazilian Patent and Trademark Office (BRPTO) fails to meet statutory examination deadlines. Several bills currently under consideration seek to introduce such a system.

The BRPTO has firmly rejected these proposals, arguing that a PTA is unnecessary given its current average patent examination time of approximately three years and four months. According to the Office, this timeframe indicates that delays are minimal and thus do not warrant adjustments to patent terms.

Key takeaways for Patent Term Adjustment Brazil

• Confirm how the development affects litigation ownership, enforcement, licensing, or portfolio records.
• Separate confirmed facts from legal interpretation before advising business teams.
• Map deadlines, affected assets, contracts, and evidence files to the responsible internal owner.
• Use the issue as a prompt for monitoring, filing strategy, dispute preparation, or member education.

Practical analysis

While the BRPTO’s current average pendency marks a significant improvement from previous backlogs—where substantive examination could take nearly eight years—this argument contrasts with practices in major patent offices worldwide. For instance, Japan averages about one year and one month, China around one year and three months, and the United States approximately two years and two months for patent examination. Notably, all these jurisdictions maintain PTA mechanisms precisely to protect inventors from undue delays caused by the patent offices themselves.

The logic behind PTA is akin to insurance: it provides protection against worst-case scenarios. Although the BRPTO’s current performance is reasonable, future circumstances could change. Data from the BRPTO reveals that while patent filings have remained relatively stable—averaging 27,919 applications annually over the past four years—the number of decisions issued is declining sharply, from 46,704 in 2021 to a projected 25,525 in 2025. When excluding dismissals and focusing solely on decisions on the merits, the figure drops further to 16,953. This trend raises concerns about the Office’s capacity to sustain its current examination pace.

Challenges common to Brazilian public administration, such as insufficient investment and resource constraints, contribute to these concerns. In response, the Brazilian Association of Intellectual Property (ABPI) initiated lawsuit #5095710‑55.2021.4.02.5101, seeking to compel the federal government to allocate necessary funds to the BRPTO. The Federal Court of Appeals for the Second Circuit (TRF‑2) upheld a favorable ruling on March 3, 2026, mandating the government to provide resources according to an approved implementation plan.

Despite this judicial victory, the BRPTO has appealed the decision, aiming to overturn the ruling that guarantees it increased funding. Without these resources, maintaining current examination times may prove difficult.

Even if the BRPTO sustains reasonable average examination durations, individual applications may still experience significant delays. Some applications currently take over four years to receive a first official action. If such applications are rejected and the applicant files an administrative appeal—where the average decision time is approximately four years and six months—the total time to grant a patent could exceed ten years. Without a PTA mechanism, patent holders would effectively be penalized for delays attributable solely to the Office.

The PTA mechanism is designed to address such exceptional delays, ensuring patent holders retain a minimum reasonable period to exploit their inventions post-grant. In the United States, for example, about 40% of granted patents receive no adjustment, and roughly 75% receive adjustments close to one year. If Brazil’s BRPTO maintains its current pace, few patents would qualify for adjustments, and those that do would likely receive minimal extensions.

A key legal context for this debate is the Brazilian Supreme Federal Court’s (STF) decision in Constitutional Challenge (ADI) #5,529, which declared unconstitutional the sole paragraph of Article 40 of Law #9,279. The BRPTO argues that introducing PTA would circumvent this ruling. However, the proposed PTA models have been carefully crafted to address the STF’s concerns. They require patent holders to request adjustments, condition eligibility on delays exclusively caused by the Office, and rely on clearly defined deadlines and calculation methods established through BRPTO regulations. This framework ensures predictability and transparency, allowing stakeholders to monitor application progress online and anticipate potential adjustments well in advance.

The STF itself has recognized the superiority of PTA mechanisms over the now-invalidated Article 40 provision. It emphasized that any PTA system must be grounded in objective legal criteria, a standard the current legislative proposals aim to meet.

The fundamental purpose of PTA is to guarantee that patent holders have a fair opportunity to benefit from their inventions after grant, as only then can they enforce exclusive rights against third parties under Article 42 of Law #9,279. Prior to grant, enforcement rights do not apply, a principle upheld by judicial decisions.

Historically, since Brazil’s first patent statute—the Royal Charter of April 28, 1809—there has been a consistent focus on ensuring a reasonable post-grant exploitation period. Effective enforcement against deliberate infringers, who constitute the majority of infringement cases, requires timely and enforceable patent rights. Article 44 of Law #9,279, which provides for damages, offers limited deterrence because infringement damages are often determined years later, after protracted litigation and complex calculations under Article 210, assuming the infringer remains solvent.

The decision to adopt a PTA mechanism reflects broader choices about Brazil’s innovation landscape. Countries with advanced innovation indices, robust healthcare systems, and dynamic economies—such as the United States, Japan, and China—all maintain PTA systems despite operating efficient patent offices. Introducing PTA in Brazil would align the country with these global leaders and enhance its capacity to foster innovation.

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