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>[26.Jun.09]
Patents – PCT National Phase restoration
in Brazil
Source: Infomail ABREU, MERKL no. 26
The Brazilian National Institute of Industrial Property
(INPI/BR) published Resolution no. 212/09, dated 14.May.2009,
regulating the restoration of the right of priority
of Brazilian national phases of international applications
under the Patent Cooperation Treaty (PCT).
In Brazil, a national
phase under the PCT should be started before the INPI/BR
within 30 months from the earliest priority date. Hence,
for instance, if a Canadian entity files an application
in Canada, on 26.Jan.2008, and an international application,
on 25.Jan.2009, claiming priority from the Canadian
application, the deadline for entering the national
phase in Brazil will be 26.Jul.2010.
In accordance with the
Resolution, if due to a fortuitous event or force majeure
the applicant does not comply with the 30-month deadline,
he may request the restoration of the national phase
producing evidence of the facts that characterize the
force majeure or fortuitous event. The Resolution defines
force majeure or fortuitous event, in sum, as a supervening,
overwhelming, unforeseeable and inevitable, event caused
by acts of nature or people.
The time limit for requesting
the restoration and complying with the other national
phase entry requirements is 2 months from the date in
which the fortuitous event or force majeure ceased or
12 months from the normal 30-months deadline, whichever
expires first.
The procedure of restoration
of the PCT national phase in Brazil is very important
in order to safeguard applicants from force majeure
or fortuitous events. Nevertheless, these events may
be sometimes difficult to prove according to the Brazilian
law. Therefore, adopting a reasonable standard of care
and entering the national phase in Brazil well before
the 30-month deadline may avoid the need for such procedure.
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