Landmark ruling from Brazil’s Federal Court of Appeals

Therapeutic Method Claims Can Be Redrafted Into Swiss-Type Format

BRAZIL COURT OF APPEALS CLARIFIED THAT THERAPEUTIC METHOD CLAIMS CAN BE REDRAFTED INTO SWISS-TYPE FORMAT.

Brazil is one of many countries that claims directed to therapeutic methods are excluded from patent protection. This legal stance safeguards ethical medical practice by ensuring that healthcare professionals can treat patients without the risk of infringing on patent rights. While therapeutic methods remain non-patentable, compounds and compositions, as well as medical uses thereof, drafted into “Swiss-type” format, are considered eligible subject matter.

Historically, the Brazilian Patent and Trademark Office (BRPTO) has objected to amendments reformulating therapeutic method claims to Swiss-type claims after examination was requested, citing Article 32 and asserting that such reformulations altered the scope of protection of the subject matter for which the examination was requested. This restrictive interpretation may be shifting.

A recent ruling from the Federal Court of Appeals for the Second Region (TRF-2), has challenged this position. The court reversed the BRPTO’s rejection of divisional application PI 9917687-4 (Appeal case #0225909-95.2017.4.02.5101), which featured claims reformulated into the Swiss-type format. The court relied on a report from a court-appointed expert which concluded that the Swiss-type format reformulations narrow, rather than broaden, the scope of protection. Consequently, the court held that such amendments do not violate Article 32. The BRPTO’s administrative decision was nullified, and examination of the divisional application will follow its regular prosecution proceedings.

This landmark decision introduces greater clarity and adaptability for applicants pursuing protection of medical use inventions in Brazil. In fact, this Appeal Court decision would support the alignment of Brazil’s practices with international standards, reinforcing a more innovation-friendly patent environment in the biotechnology and pharmaceutical sector.

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