The Brazilian Patent Office Unveiled – Looking through the mist of backlog – Part I
November 10, 2017

By Otto Licks The Brazilian Patent Office (BRPTO) is probably the Office with the most delay in terms of patent applications worldwide. While this comes as no surprise, this series of articles will discuss the causes for these delays. Among the alleged causes for the delay is the lack of patent examiners. Practitioners have always bought into this idea, but is this actually true? A closer look at the numbers indicates that the scenario is slightly different from common belief. We can start by using the largest patent offices (IP5) as a reference. An interesting metric is the comparison of the total number of examiners with the patent filings in a given year. By doing so, it is broadly possible to determine the number of applications each examiner must process per month (hereinafter-called ratio) in order to keep the backlog steady. The results are set out in the following table:

In respect of the figures above, it is interesting to note a substantial variation in the ratio. While the EPO and USPTO have the lowest ratios, the KIPO is leading with the highest examiner workload. The low ratio in respect of the US is consistent with the country’s policy of regularly reducing the pendency time. However, critics are starting to question what the USPTO will do with the excess number of examiners once the backlog problem is solved. It is possible to observe a similar trend in respect of Europe, where the pendency time has been steadily decreasing through the years. It is also very important to remember that the EPO is a leading ISA at the PCT. According to WIPO:

It is impossible to determine how this additional workload affects ratio. However, we should keep these numbers in mind when analyzing the Brazilian position. Turning to Brazil, there are no precise yearly statistics regarding the overall pendency time of a patent application at the BRPTO. Based on experience, practitioners know that backlog means a current delay of at least 11 years from filing a patent application. For this reason, the official numbers as to the pendency time from filing to the issuance of a first examination report are set out in the table below.

*estimated based on the following factors:

i) According to official data from http://www.portaltransparencia.gov.br there is currently a total of 304 examiners at the BR PTO;

ii) we have estimated as 5 the number of examiners that leave the patent office every year;

iii) According to 2013 BRPTO’s Management Report http://www.inpi.gov.br/sobre/arquivos/relatorio_de_gestao_prestacao_de_contas_inpi_2013.pdf 28 new examiners joined the patent office on 2012)

It is ascertainable from the numbers that the Brazilian ratio is slightly higher than those of the USPTO and EPO. Nonetheless, the backlog in the two latter patent offices is decreasing, while in Brazil it is rapidly increasing. In addition, the BR PTO processes only a very limited number of applications when acting as ISA, as indicated below:

When compared to the Asian patent offices, it is clear that the BR PTO could perfectly manage to undertake a higher workload (higher ratio) and still reduce the backlog. The KIPO provides an extreme illustration of this point. The question is why does the backlog keep increasing in Brazil? A deeper look at official data (available at http://www.portaltransparencia.gov.br) partly provides an answer. Among the 304 current examiners, 87 are not currently examining patent applications. A number of patent examiners are taking care of the BRPTO’s library, acting as user support officers, analyzing licensing contracts, handling PCT’s formalities and teaching at the BR PTO’s Academy. In addition, the patent department at the BRPTO is subdivided into 4 coordination units and 20 divisions. The heads of each division and unit, are all patent examiners, but do not examine patent applications. Nonetheless, even if we disregard the number of 87 examiners not currently examining applications, the ratio remains at around 13 (lower than JPO and KIPO). To answer the initial question posed, it is clear that the current number of examiners at the BR PTO is more than enough to start coping with the backlog problem. Of course, having more Examiners on board would be valuable. However, the backlog should already be following a decreasing trend. Following the appointment of the new BR PTO’s president on August 11, 2015, AFINPI (Workers’ Union of the BR PTO) issued a letter rebutting the common sense that the backlog problem would solely be related to the lack of examiners. According to this letter, inexists a minimum infrastructure and modern management policies in the BR PTO. AFINPI also express its concerns regarding the excessive number of divisions at the BR PTO’s patent department and other positions that, although occupied by examiners, bear no relationship with patent examination. In the next articles we will investigate how the huge backlog in the BRPTO came about, how performance is measured at the BR PTO, and whether the performance metrics are adequate or not. If you have any questions or need additional information, please contact us at prevail@localhost/licks/site.

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