Newsletter Edition 19 - November 2020


In favor of the maintenance of the minimum term of validity for patents

In recent months, a manifesto published in the newspaper Valor Econômico and released on social networks highlighted ABPI’s position for the maintenance of the sole paragraph of art. 40 of the Brazilian Industrial Property Law – IPL (Law 9.279/96). The legal provision – which ensures a minimum term of ten years of validity of patents, after being granted by the BPTO (Brazilian Patent and Trademark Office) – is under examination by the Federal Supreme Court (STF) through ADI 5529, a process in which ABPI participates as amicus curiae.

The topic was discussed on a table topic at the 40th International Congress on Intellectual Property with a full audience, bringing together Rafael Fonseca de Pinho, from Kasznar Leonardos and Henry Suzuki, from Axonal Consultoria Tecnológica, moderated by lawyer João Marcelo de Lima Assafim.

According to ABPI’s manifesto, article 40 of the Brazilian IPL “stems from a legitimate option” of the Legislative Power, “in more than five years of debates, which resulted in the enactment of the IPL”, remembering that the validity of patents from the concession was already part of the legislation (art. 29 of Decree-Law 1005/69). The document states: “The norm that ensures minimum protection for granted patents guarantees predictability and legal certainty for companies that invest in a wide range of segments, including the production of generic drugs, as all market players are informed, with a substantial advance of 10 years, at which time the patents will expire”.

The manifesto emphasizes that the sole paragraph of art. 40 of the Brazilian IPL implements international norms foreseen in art. 62, 2, of the TRIPS Agreement, to which Brazil is a signatory. The document recognizes that, in an ideal scenario, this provision would not need to be applied since the legislation in force determines 20 years for patents, counting from the protocol. And he adds: “Now, it is enough that the examination of patent applications by the BPTO is completed in less than 10 years, and it will not be necessary to count the validity from the grant. Without a minimum legal guarantee, investments in research and development will certainly be reduced due to the lack of adequate patent protection”.