Patent law litigation in Brazil at the supreme court: an attempt to invalidate sole paragraph of section 40 of the Brazillian patent law

Luiz Edgard Montaury Pimenta Articles 20 October 2020

The Supreme Court o Brazil is about to schedule the judgement session of the lawsuit ( ADIN ) 5529 filed by the Federal District Attorney’s Office seeking the invalidation of the sole paragraph of section 40 of the Brazilian Patent Law, which provides for a minimum term of 10 years of validity of patents after their grant by the Brazilian Patent Office.

ABPI , the Brazilian IP Association , the major IP Association in Brazil , that I am proud to preside since 2018 , has been accepted in such lawsuit to defend the legality of such provision , so consequently presented strong arguments on behalf of the validity of such section in our Patent Law , and requesting the rejection of the lawsuit .

As a matter of fact , such provision implements an international rule to which Brazil and other countries freely accepted ( section 62 , 2 , of the TRIPs Agreement ) , being essential for patent holders to enjoy the exclusive exploitation of their invention by a minimum period of 10 years .

In fact , this rule should hardly ever be applied for , being only a guarantee for a 10 year minimum period of a patent after its grant by the Brazilian Patent Office .

Tha Brazilian IP Association ( ABPI ) has recently published a full page MANIFESTUM in the major Brazilian business newspaper ( Valor ) in favor of innovation and of the maintenance of the term of patents in Brazil . A copy of such publication is attached with the corresponding English translation .

Since August 2019 , the Brazilian Patent Office has implemented a program through which they seek the elimination of the long stand existing ( and unacceptable ) patent backlog , which has been contested on a regular basis during several years by ABPI and other entities , so carrying out an extraordinary and meritorious effort to reduce the examination term of patent applications in Brazil , so 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 Brazilian Supreme Court will share this same understanding and will maintain the validity of such provision in our Patent Law.

Luiz Edgard Montaury Pimenta.
Senior partner at Montaury Pimenta, Machado & Vieira de Mello and President of ABPI (Brazilian IP Association).

Fonte/source:

Manifesto ABPI (English version) | Manifesto ABPI (Português)