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

The Supreme Court of 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.

DOWNLOAD: Manifesto ABPI (English version)