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11 May 2021Alex Baldwin

Brazil rules 10-year patent term ‘unconstitutional’

Brazil’s Supreme Court has ruled that the country’s ten-year patent term is unconstitutional.

The court heard arguments challenging Article 40 of the Brazillian Intellectual Property Statute last week before handing down the ruling on May 6.

Article 40 ensures the term of a patent for an invention is 20 years from the filing date. With the sole paragraph claiming that the term shall be no less than ten years from the date of the grant.

Nine justices issued their opinions claiming that the ten-year patent term was unconstitutional, claiming that the general 20-year protection from filing date was suitable enough, according to patent attorney Lisa Mueller writing for IP Brazil IP blog BRICS and Beyond.

The examination of Article 40 was first promoted due to a lawsuit filed in 2016 to petition the Supreme Court to reconsider its patent protection laws, claiming that the laws offer protection for an “excessive time period”.

The court will also decide this week whether this ruling applies retroactively.

Pharmaceutical impact

From this decision and a recent preliminary ruling by Supreme Court judge Justice Toffoli to suspend drug patent extensions in light of the public health crisis caused by COVID-19, the future of many Brazilian pharmaceutical patents is uncertain.

Toffoli’s proposal would revoke the ten-year patent term provision for pharmaceutical patents only, Joaquim Eugenio Goulart, a partner at Danneman Siemsen told LSIPR.

According to Mueller, several of the justices in last week's Supreme Court decision “expressed concern” that the decision should not be retroactive, or only retroactive for pandemic-related treatments.

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24 October 2019   The Brazilian Federal Public Defender’s Office has filed a complaint against Gilead for hugely increasing the price of its hepatitis C drug since it gained patent protection.
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13 April 2017   Brazil’s President Michel Temer has revealed measures aimed at improving the IP system in the country.