In a document sent, on the 12th of this month, to all senators of the Republic, the ABPI – Brazilian Association of Intellectual Property expressed its opinion regarding the approval, on July 7th, by the Chamber of Deputies, of the text of Bill no. 12 / 2021. The PL suspends obligations assumed by Brazil under the Agreement on Trade-Related Aspects of Intellectual Property Rights (ADPIC) – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), adopted by the General Council of the World Trade Organization (WTO), while a coronavirus-related public health emergency exists (Covid-19).
In the document, the ABPI “shares the view that the coivid-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 protection system to intellectual property, in particular the patent system, which enabled the development and availability in record time of so many vaccines, medicines and equipment to fight Covid-19”.
In the comments to PL 12/2021, the document points out inconsistency in articles 71: “The inclusion of an international emergency does not seem to make sense to us”. In relation to § 2, it points out that “The publication of a list of patents or patent applications does not have known precedents in international law either and”, “it constitutes a threat that seems to us to violate the first principle stipulated in Art. 33 of the TRIPS Agreement, § 2 , which deals with the publication of patent lists of potentially useful technologies”.
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, in addition to conferring a fluid character to said list, promoting legal uncertainty between patent holders”. As for § 8, the document considers that “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 transmit the necessary and sufficient information for the effective reproduction of the object protected embeds a conceptual distortion that has been repeated in discussions on compulsory licenses”.
In the comment on § 10, the document considers that “it refers to the duration of the license in relation to the arbitration of remuneration, but does not determine that this duration is established in the act of granting the license, as currently provided by Decree No. 3201/993. And as for § 11 it says that “it configures 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, in fact, reflects the economic value and the circumstances as regulated by § 10”. In the comment on § 11, he 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”.
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