MEDIA & PUBLICATIONS

On February 10, 2026, the 4th Federal Court of the Federal District rendered a decision of significant impact on the debate concerning the legal effects of administrative delay in the processing of patent applications. In Case #1028978-18.2022.4.01.3400, the judge issued a new decision on the merits recognizing the unjustified delay of the Government in concluding the examination of the patent application and granting the compensatory claim filed by the plaintiff. The court ordered the Brazilian Patent and Trademark Office (“BRPTO”) to issue a new letters patent with a revised term of validity, proportionally adjusted to the administrative delay.

The case involved an application filed in 2001, whose examination was requested in 2004 and only concluded in 2017, that is, after more than 16 years of administrative processing. The 4th Federal Court of the Federal District found that, throughout this period, the patent owner had acted diligently and had not contributed to the delay, which was attributed exclusively to the BRPTO, which failed to present any plausible legal justification for such delay. The court held that the BRPTO breached its duty to decide and to comply with the principle of reasonable duration of proceedings, unduly prolonging the procedure. This conduct caused damage to the applicant, since, during the pendency of the patent application, the applicant holds merely a legitimate expectation of rights, whereas patent rights arise only upon grant. Accordingly, the court recognized the need to compensate the applicant based on Article 37, Paragraph 6, of the Brazilian Constitution.

In this case, although the processing of the patent application lasted more than 16 years, the patent had been granted while the regime established by the former sole paragraph of Article 40 of Law #9,279/1996 (the “Brazilian Patent Statute” or “BPS”) was still in force. This provision guaranteed a minimum term of ten years from the grant of the patent when the administrative processing exceeded ten years in total. This mechanism partially mitigated the harm resulting from the BRPTO’s delay, which is systematic and has been acknowledged not only by the Judiciary Branch, but also by controlling bodies, especially the Federal Court of Accounts, as well as by the BRPTO itself.
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  Eduardo Hallak

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  Liliane Roriz

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  Gabriela Monteiro

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  Juliana Neves

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  Sarah Lucas