The ADIN 5529 proposed by the Attorney General’s Office is in progress at the Supreme Federal Court, aiming at the declaration of unconstitutionality 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 granted by INPI – National Institute of Industrial Property.
ABPI- Brazilian Intellectual Property Association, one of the main and, certainly, the largest Intellectual Property Association in Brazil, which I am proud to preside over since 2018, was accepted as amicus curiae in this process to defend the legality of such a device , having presented strong subsidies for the purpose of supporting the constitutionality of such legal provision in our Patent Law, thus postulating that said ADIN be rejected.
In fact, the referred single paragraph, of art. 40, from LPI implements international standard to which Brazil and other countries freely adhered (art. 62, 2, of the TRIPs Agreement), being essential for innovative companies to enjoy the exclusivity of exploitation of their inventions for a minimum period of 10 years , which allows them to obtain a return on their investments in research and development.
In fact, such a rule should be applied only occasionally, being only a minimum guarantee of 10 years for the validity of a patent after its grant by the INPI.
The ABPI-Brazilian Intellectual Property Association recently published a full-page MANIFEST in one of the main business newspapers in Brazil in favor of innovation and maintaining the patent term in Brazil. Attached is a copy of that document.
Since August 2019, INPI has implemented a program aimed at eliminating the long (and unacceptable) backlog of patent applications – a backlog that has been contested on a regular basis for several years by ABPI and other entities -, thus making an extraordinary and meritorious to reduce the time taken to examine patent applications in Brazil, so that we all hope that in the near future only exceptionally a patent will be granted after a period of 10 years.
We hope and believe that the Federal Supreme Court will share this understanding and maintain the validity of such provision in our Patent Law.
* Luiz Edgard Montaury Pimenta, president of ABPI – Brazilian Intellectual Property Association.