ABPI Newsletter - Edition 74 - October 2025
For years, attorney Milton Lucídio Leão Barcellos pursued an optimal framework to improve Brazil’s patent system while accounting for today’s competitive innovation landscape, Brazil’s international commitments, and the country’s social and economic particularities. His newly released book, Direito de Patentes Brasileiro (Brazilian Patent Law), published by Lumen Juris, advances this discussion. Barcellos holds a Master’s and a PhD in Law from PUCRS and is also the author of Propriedade Industrial & Constituição and O Sistema Internacional de Patentes. In this conversation, he highlights key ideas from the new book, which, as he puts it, offers “a contemporary view of patent law.”
Interview
What is the core argument of your book?
Milton Lucídio Leão Barcellos (MLLB): I advocate a contemporary Brazilian perspective on patent law. In short, grounded in the pillars of equality, competition, and hermeneutics, Brazilian patent law should be interpreted systematically, aligned with its purposes, and tailored to the particularities of each technological sector—while remaining consistent with the international agreements to which Brazil is a signatory.
How do you assess the functioning of Brazil’s patent system?
MLLB: The Brazilian system is good. At the BPTO (Brazilian Patent and Trademark Office), we have experienced and dedicated examiners. As a key institution, however, the BPTO needs greater national investment in infrastructure, technical staff, and technology. As for the Judiciary, both the Federal Court in Rio de Janeiro and the Federal Regional Court of the 2nd Region (TRF2) demonstrate diligence and a refined patent jurisprudence. Still, we need a larger pool of qualified court-appointed experts in patents. In Brazil, the culture surrounding the clear definition of property rights in inventions or utility models is still in its early stages and mainly focused on specific niches.
What is needed to improve the system?
MLLB: Higher-quality examination, supported by more examiners (with more time per case) and continuous training to promote clear, consistent interpretation of patentability requirements—especially inventive step and sufficiency of disclosure—for complex cases, aligned with best international practices and adapted to Brazil’s system. I also argue—consistent with ADI 5529 (2021)—that the 20-year term set by the TRIPS Agreement as a minimum and incorporated into Brazil’s Industrial Property Law (LPI) should, in practice, be the maximum term granted in Brazil, without violating Article 27 of TRIPS.
How would you characterize Brazil’s current patent legislation?
MLLB: It is adequate. Applying the Industrial Property Law (LPI) together with the Federal Administrative Procedure Law (LPAF) (which supplements the LPI), we have a current, functional framework that guarantees applicants, for example, the constitutional right to a reasonable duration of the administrative proceeding and to decisions with substantive reasoning.
Which points should be updated?
MLLB: Given Brazil’s adherence to TRIPS, a key point is to maintain the patent term limited to the caput of Article 40 of the LPI (maximum of 20 years), without introducing Patent Term Extensions (PTE), Patent Term Adjustments (PTA), or Supplementary Protection Certificates (SPC) into the Brazilian system.
Your book discusses the principle of equality. How can it be reconciled with free competition?
MLLB: The research proposes solutions along three lines:
a) Technology-specific analysis: Apply the equality principle in its material sense—using the technology at issue as the relevant differentiator—to interpret patentability requirements and clearly define the scope of protection in the market. This helps prevent undue private appropriation of the public domain through oversized rights in specific technical areas, such as Computer-Implemented Inventions (CIIs).
b) Compulsory licensing as a competition tool: Although underused for abuse of rights, abuse of economic power, or improvement/dependency between patents, compulsory licenses should be better understood and procedurally evaluated in competition settings—both by CADE and the Judiciary.
c) A more idealized “ought-to-be” perspective: Acknowledging that TRIPS’ non-discrimination principle, when based on “technology” as a uniform premise, may be an imperfect differentiator because it does not modulate term and protection according to sector-specific dynamics. Recognizing this tension in a competitive environment can guide how the patent system might evolve toward a more balanced and desirable future—even if such a model would, today, raise potential TRIPS-compliance issues.