ABPI – Brazilian Association of Intellectual Property, a non-partisan study entity founded in 1963, dedicated to the promotion and smooth functioning of the intellectual property protection system, as this results in investments in innovation that are essential for the Brazilian economic and social development, defends the maintenance of the validity of the sole paragraph of art. 40, of the Industrial Property Law – LPI (Law 9.279 / 96), which ensures a minimum term of 10 years of validity of patents, after their grant by INPI – National Institute of Industrial Property.
The issue, currently under examination by the Supreme Federal Court through ADI 5529, has no constitutional character, and the rule contained in the law arises from a legitimate option made by the democratically elected Legislative Branch, in the course of extensive debates (for more than 5 years) ) that resulted in the promulgation of the LPI. In fact, it is worth remembering that, in our country, the validity of patents from the grant has already existed in law, in the past (art. 29 of Decree-Law 1005/69), when the constitutional text was practically identical to the current one.
The standard that ensures minimum protection for granted patents guarantees predictability and legal certainty for companies that invest in the most varied segments, including the production of generic medicines, as all market players are informed, with ample advance notice, of 10 years, when the patents will expire.
The sole paragraph of art. 40, of the LPI implements international standard to which Brazil and other countries freely adhered (art. 62, 2, of the TRIPs Agreement), being essential for the innovative companies to enjoy the exclusivity of exploration of their invention for a minimum (and short period) ) for 10 years, allowing them to obtain a return on their investments in creation.
In an ideal scenario, the commented rule should not be applied almost never, as our law determines that the validity of patents must be for 20 years from the protocol, being guaranteed only at least 10 years after the grant. Now, it is enough that the examination of patent applications, by the INPI, is completed in less than 10 years and it will not be necessary to count the validity from the grant. This is an objective that should unite the country and, incidentally, since August 2019, the INPI is already making an extraordinary and meritorious effort to reduce this examination period, in such a way that, we believe, soon there will only exceptionally be a patent granted after more than 10 years from its protocol.
Without a minimum legal guarantee, investments in research and development will certainly be reduced due to the lack of adequate patent protection.
October 7, 2020
ABPI – Brazilian Intellectual Property Association