On July 12th, in a document sent to all Senators of the Republic, ABPI expressed concern regarding the approval on July 7th, by the Chamber of Deputies, of the text of Bill No. 12/2021. The Bill suspends obligations assumed by Brazil under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), adopted by the General Council of the World Trade Organization (WTO), while the coronavirus-related public health emergency remains in force.
In the document, ABPI “shares the view that the Covid-19 pandemic is an unprecedented humanitarian crisis” and that “everyone should have equal access to vaccines and forms of treatment for this disease” and emphasizes that “it was the intellectual property protection system, in particular the patent system, which enabled the development and availability in a record time of so many vaccines, medicines, and equipment to fight against Covid-19”.
In the comments to Bill 12/2021, the document points out the inconsistency in article 71: “The inclusion of an international emergency does not seem to make sense to us”. Concerning § 2, it observes that “The publication of a list of patents or patent applications does not have known precedents in international law either” and that, “§ 2, which deals with the publication of patent lists of potentially useful technologies, constitutes a threat that seems to us to violate the first principle stipulated in Art. 33 of the TRIPS Agreement”.
About § 4: “The possibility of any public or private institution to submit a request for the inclusion of new items in the list of § 2 constitutes an aggravation of the violation of the TRIPS principle, besides conferring a fluid character to said list, promoting legal uncertainty among patent holders”.
As for § 8, the document considers that “it unjustifiably generalizes the obligation of the holder to provide information for the production of the object of the patent”, and points out that “the determination on the obligation of the holder to convey the necessary and sufficient information for the effective reproduction of the object protected embeds a conceptual distortion that has been repeated in discussions about compulsory licenses”.
In the comment on § 10, the document considers that “it refers to the duration of the license concerning the arbitration of remuneration, but it does not determine that this duration is established in the act of granting the license, as currently provided by Decree No. 3.201/993. And as for § 11, it adds that “it sets up an intensification of the rules of Decree No. 3.201/995 in the sense that it is no longer determined in the act of granting the compulsory license the remuneration that reflects the economic value and circumstances such as regulated by § 10”.
Concerning the comment on § 11, it reaffirms the comment already made to the caput of Art. 71: “on the lack of known precedents in other countries of granting compulsory license by law”.
