Brazilian IP Legal Systems: Virtual Courts/Virtual Trademark and Patent Office and the Pursuit of Greater Effectiveness

The COVID-19 pandemic has definitely changed the way we live. While the majority of law firms in Brazil are still working almost 100% remotely, at home, the Brazilian Courts and the Brazilian Trademark and Patent Office have also adapted themselves to this new reality, changing the centenary presential routine for home office.

The scenario on the Brazilian Courts

Despite all challenges the pandemic has brought, the Brazilian judicial sector has not slowed down; it has been the exact opposite. With a rereading of its functioning, the Rio de Janeiro State Court, for instance, has actually increased its performance in comparison with the same period in 2019. According to collected data, more than nine million ongoing lawsuits (civil, business, criminal and consumer courts) were given a good progress during March and April (the first two months of COVID-19 outbreak in the city of Rio de Janeiro), with the issuing of decisions and other procedural acts for the due process of law[1].

The need to adapt to a new way of life, almost overnight, forced the State Courts to expedite the scanning of lawsuits which were still in paper format, and not yet digitized. Along with so many modifications, another change has recently occurred: on last October 27, 2020, the National Council of Justice announced the implementation of the so-called 100% Digital Court[2], with the Rio de Janeiro State Court being the first in Brazil to implement said system.

The aim of this project is to execute the procedural acts of lawsuits through entirely digital means. Despite most lawsuits being processed electronically, which does decrease the number of paper files over time, there are still many presential acts that may still occur, such as conciliatory and judgement sessions, among others.

The 100% Digital Court project arises in accordance with the Brazilian Code of Civil Procedure, which sets forth the possibility of practicing procedural acts digitally, as set forth by Section 196. Up until now, the thirteen jurisdictional units of the Rio de Janeiro State Court have adopted the 100% Digital project and, as a result, the hearings, judgement sessions and ex parte in-chamber meetings with the judges will occur exclusively via video conference.

Under the current scenario, technology is definitely the best ally, and the implementation of this project opens a path to greater effectiveness of the Brazilian judicial system. While online courts bring about many challenges, it also has the potential to strengthen fair trials, transparency and celerity, since its main purpose is to avoid the bureaucracy and delays. Now, parties will be able to participate in the hearings even if they are miles away, saving time and money.

The specialization of the Brazilian Courts and Judges in IP-related disputes

But this was not the first time that the Rio de Janeiro courts have taken the lead in seeking to make the judicial system more effective.

In 2001, following a special provision of the Brazilian Industrial Property Law (“BIPL”) that authorizes the judiciary to establish specialized courts to handle Intellectual Property-related disputes, the Federal Court of Rio de Janeiro had the leading role in the implementation of specialized lower courts on Patent and Trademark Invalidity cases. This was the first federal court to apply such provision on a federal level, which are the courts entitled to handle invalidity lawsuits.

Soon after, the State Court of Rio de Janeiro, which is responsible for ruling on infringement actions, changed the name of its bankruptcy courts to corporate courts, thereby enlarging its jurisdiction to include Patent, Trademark, Trade Dress, and, later, Copyright infringement lawsuits.

In 2005, the Federal Court of Appeals, section of the State of Rio de Janeiro, in charge of ruling on appeals from the federal courts of the states of Rio de Janeiro and Espirito Santo, also formed specialized chambers for intellectual property (“IP”) invalidity cases, being one of the first Courts of Appeal to implement this measure. Such changes, along with the efforts of some Judges to spread the best practices on how to handle IP matters, have brought notable contributions to the development of the case law on Intellectual Property matters in Brazil during this period.

Other states have also started to create special courts on IP and, today, Rio Grande do Sul, Minas Gerais, São Paulo as well as other jurisdictions have specialized lower courts and/or courts of appeals for infringement lawsuits.

Such developments show the increase of public awareness on IP issues as well as the exponential growth of new court actions aimed at enforcing IP rights in Brazil. As a matter of fact, in the past few years, the total number of patent, industrial design and trademark applications filed with the Brazilian Patent and Trademark Office (“BPTO”) has increased considerably (excluding the COVID-19 period). Additionally, IP-related topics have become an increasingly significant theme of discussion nationally, with an ever-increasing number of cases and controversies.

In this scenario, besides leading to better and faster court decisions, specialized lower courts and courts of appeal ensure predictability and greater legal certainty, which are all essential elements to attract investments and lead the country into economic growth.

Likewise, measures such as the 100% Digital Court project seek to enhance the quality of the procedural acts taken by the Courts, which bring benefits not only to the parties of the lawsuit, but to the civil society in general. More efficacy and celerity mean faster outcomes, relieving the Judicial system from having tons of endless lawsuits just due to bureaucracy.

Although the specialized courts of the Rio de Janeiro State Court are still not encompassed on the first part of 100% Digital Court pilot project, when such implementation is completed (which will be voluntarily), the tendency is that it will be of easy adjustment, now that, due to force majeure of the COVID-19 outbreak, the courts and the public were almost obligated to adapt themselves to work digital and remotely, far from the office and the courts.

The scenario on the Brazilian Patent and Trademark Office (“BPTO”)

Another piece of good news is that, according to the BPTO’s president[3], the BPTO has also implemented concrete goals for the years to come with respect to improving the efficiency of its services.

Among such improvements, with a strategic plan supported by three hundred actions, the BPTO is committed to promote digital access to all services, increase the technical training of examiners as well as reduce by 80% the stock backlog of patent applications pending of examination, until the end of 2021.

Although the BPTO staff has been working remotely from home since March, due to the COVID-19 outbreak, their performance stays positive: in that month, the number of decisions granting/rejecting patent applications was the highest since January 2019, and presented a rise of 16% on the issuing of technical office actions in comparison with the same period last year.

Until last September’s fortnight, the BPTO has reduced by 41% the patent applications backlog orders filed by 2016, and now the average of decisions concerning patent’s granting/rejection is 5 years after the examination request - when, before the project, such average ranged from 10-12 years.

These numbers definitely demonstrate the positive results being achieved by the BPTO, day-by-day, even during the pandemic. Besides the improvements drawn before the pandemic, the BPTO has also adapted itself in an attempt to suit the world’s new reality, helping the society to enhance the fight against COVID-19, never forgetting to seek its main purpose, which is constantly being pursued: the fostering of innovation in the country.

In light of the above judicial and administrative changes, the overall scenario is clearly getting more favorable for entrepreneurs and companies, as the years go by.

While Brazil still has a long way to go, it is commendable that the Brazilian government is in pursuit of greater effectiveness of its judicial and IP systems. Such a statement is reinforced by the latest reports on the efficiency of the judiciary and of the Brazilian Patent and Trademark Office, including the implementation of the 100% digital court project as well as by the efforts and investments made by the BPTO to implement its strategic goals.

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Source: Lexology - https://www.lexology.com/library/detail.aspx?g=dfe77ea8-588a-4b38-9a53-3dc62c990d5a