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New proceedings of the Brazilian PTO when assessing patent applications at the appeal stage

By: Ricardo Boclin

December 18, 2023

The Brazilian PTO has recently communicated that the appeal procedures will be more restrictive from February 2024.

In summary, upon lodging an appeal before the PTO it will be no longer possible either to file voluntary amendments or submit new arguments that were not assessed by the first instance examiner. Indeed, the appeal board will be focused on reviewing the decision of the first instance examiner based on the arguments and set of claims presented in response to the office action issued by the first instance examiner.

If a subject matter under examination was not properly addressed by the first instance examiner, the appeal board may either forward the appeal arguments back to the first instance examiner for a new substantive examination proceeding or move forward with the examination at the appeal stage if the appeal board examiners believe that they are able to carry out the examination.

Due to such restrictive proceedings to be in force as of February 10, 2024, upon replying to office actions within the first instance, it is important to realize that it may be the last opportunity to submit arguments and voluntary amendments, should a rejecting decision is issued afterwards.

Please do not hesitate to contact us should you need further clarification in this regard.

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