In a public clarification sent to the Federal Senate, ABPI – Brazilian Intellectual Property Association – ABPI issued its position on PL 12/2021, which proposes the suspension of Brazil’s obligations to implement or apply Sections 1, 4, 5 and 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), adopted by the General Council of the World Trade Organization “or to enforce these sections in the pursuant to Part III of the TRIPS Agreement, in relation to the prevention, containment or treatment of COVID-19, while the public health emergency of international importance related to the coronavirus (Covid-19) prevails. ”
In the document, ABPI considers “at least doubtful” the need to suspend sections 1 and 4 of TRIPs and clarifies that Section 1 of TRIPs deals with copyright and related rights (therefore, creations of the spirit, under the terms of the Law Brazilian Copyright Law – Law No. 9,610 / 1998) and section 4 deals with industrial designs (that is, the ornamental plastic shape of an object or the ornamental set of lines and colors that can be applied to a product, providing a new visual result and original in its external configuration and that can serve as an industrial manufacturing type, according to article 95 of Law nº 9.279 / 1996). Therefore, such sections are completely unrelated to the protection of technologies ”.
As for sections 5 (patents) and 7 (confidential information), ABPI points out that PL 12/2021 “aims to suspend any and all patent rights or confidential information provided for in TRIPs on technologies aimed at combating the Covid pandemic. -19, a measure “more drastic than the compulsory licenses (popularly known as“ patent breach ”), in which there is a limitation, but not a complete emptying of the rights of the holders, and is unreasonable in view of the current panorama of the pandemic in Brazil and in the world, as will be shown below ”.
It is hasty, warns the document, “to withdraw from force devices that have been in force for almost three decades and that have been negotiated for as many years, by more than a hundred countries, in order to stimulate and protect investment in innovation. Furthermore, a unilateral attitude by our country would be contrary to our country’s tradition of honoring multilateralism, in addition to subjecting us to probable sanctions within the scope of the WTO. It should be noted that TRIPs already provides for several instruments to make the patent holder ‘s exclusivity more flexible – among them the compulsory license (“patent breach”), which can be used on time, if and when necessary. As a member of TRIPs, Brazil has its own legislation to deal with compulsory licensing, in which, in certain special situations, third parties may use the object of a patent without prior authorization from the holder by paying royalties fixed based on legal criteria. ”
Thus, the document continues, “ABPI clarifies that the proposal of PL 12/2021 is not related to compulsory licenses (“ breach of patents ”), which are already provided for in our legislation. The proposed project does in effect render an international treaty long negotiated and without clear benefits at the moment and with the clear risk that the country will be taken to the WTO Dispute Settlement Body (in the form of article 64 of TRIPs) ) for failing to comply with its international obligations and suffering international trade sanctions at a time when its economy is withering ”.
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