The Brazilian Patent Statute (Law #9,279/96) does not explicitly prohibit double patenting per se. However, as shown in the statistics set out below, the BRPTO regularly considers double patenting. This is based on the BRPTO’s interpretation of Article 6 of the Patent Statute (as set out below). In particular, the BRPTO interprets Article 6 as implementing a “single property” approach.
“Article 6. To the author of an invention or of a utility model will be assured the right to obtain a patent that guarantees to him the property, under the terms established by this statute.”
According to the BRPTO, under this local legislation, two or more patents cannot be granted for the same invention. Since article 7[1] of the Brazilian Patent Statute implements the “first to file” rule, the BRPTO usually issues objections grounded on double patenting for: (i) two or more applications filed on the same date; or (ii) parent and divisional applications.
Having said this, a closer look into a few cases decided by the BRPTO reveals that most of the double patenting objections raised by the BRPTO are based on factor (ii), i.e., an overlap between the sets of claims of a parent application and its divisional(s). Read more