How long does patent protection last in Brazil? Well, it varies.
20 years was the response, following the Brazilian adhesion to the WTO´s TRIPS, back in 1997. Five years later, an amendment to the Brazilian Patent Law made it 20 years from filing or 10 years following a grant by the Brazilian PTO. In 2021, the Brazilian Supreme Court decided such amendment was unconstitutional, so the 1997´s, 20-from filing rule should prevail. Yet, in November 2022, the same Supreme Court seems to be modulating its decision by allowing the adjustment of patent terms.
Confused? Unsure? The word you may be looking for is kafkaesque, i.e., the adjective relating to or suggestive of Franz Kafka´s work, incredibly illogical. We will try to untangle such a tropical patent maze.
Back in the mid-90, adhering to the WTO was relevant for a post-dictatorship Brazil. Less than 10 years following the return to democratic rule, Brazil was ready to “go Global.” TRIPS was too big to swallow, but it was still a necessary concession.
By becoming “global”, Brazil was forced to reinstate laws allowing the patentability of pharmaceutical products and processes. The 20-year from filing rule met the minimum requirement of TRIPS.
Nonetheless, the Brazilian PTO was not yet prepared for the booming increase in filings, mainly those from the chemical and pharmaceutical fields. Enters a patent filing shock. While other countries require 4-5 years to review patentability requirements, Brazilian prosecution could take as much as 3x times more.
Backlogs, begrudging anti-IP views, understaffing, and underfinancing were to blame. Pressured by relevant international trade partners, Brazilians opted for a statutory patch. While structures are not in place, patent terms would vary. They would either observe the basic TRIPS-mandated, 20 years from filing or follow the tropical option, i.e., ten years from grant. That changed things. Rapidly.
The statutory change privileged foreign applicants. That is not stated in a biased or derogatory sense. It is a fact that international companies were closer or more structured to filing pharma patents than their Brazilian counterparts. And that is precisely what happened. A flurry of international applicants adding Brazil to their PCT “wishlist.”
Meanwhile, the restructuring of the Brazilian “born and bred” pharma industry was not as dynamic as one could expect. The anti-IP sentiment also did not manage to dissipate. On the contrary, it grew a bit. A large bit.
Bizarrely, the Brazilian National Health Authority (“ANVISA”) was even granted patentability assessment powers much like those only national PTOs receive. An odyssey began. Interagency disputes and prosecution loitering resulted in extra uncertainties. Prosecuting patents in Brazil became an adventure. A long, unpredictable, and expensive one.
At some point in mid-2010, the PTO and ANVISA settled their grumble. The Brazilian pharma industry became empowered, R&D-driven, and appreciative of the patent system. The anti-IP people did not get (re)elected to Congress, and their momentum lost traction. The Brazilian PTO took backlog seriously and implemented a head´s turning movement toward “normalization.”
Things started looking brighter for patents. It was then time to rethink (or reconsider) terms of validity. Enters a patent tug of war.
Pressures and lobbies from all sides. Lawsuits (frivolous and others not so much). Lawyers (lots of us). Meetings. Special 301´s quotes. (De)investment threats. Eventually, the constitutionality of 2001´s “statutory patch” was challenged.
Was it a constitutional mechanism? Did it cut social expectations, i.e., by extending the validity of patents? One may say it was quite an exciting IP dispute. Maybe one of the biggest. Amicus curiae grew in trees. Several of them. Pro and against the 2001 rule. Justices even verbalize – quite assertively, one may say – their dissatisfaction with specific mechanisms and tools used by lawyers seeking to defend their position.
All in all, a decision came to life. The 2001 amendment to the Brazilian Industrial Property Law was deemed unconstitutional. Patents whose validity terms have been “adjusted” should observe the 20-year rule only—no more “or ten years from grant” option. The soap opera came to an end. Or did it?
Patent owners affected by the re-adjustment were furious. Several of them filed lawsuits challenging the Supreme Court decision. Most petitions failed. Interestingly enough, a handful won. For now, at least.
While such cases do not set precedents, they must be carefully assessed. Mainly because the same Supreme Court has re-assessed its own decision.
In the most recent decision, a Justice dodged the ruling of their peer by deciding that the 2021 decision did not (and could not) bar the Judicial branch from authorizing the readjustment of a patent if its organic prosecution by the PTO was unreasonably or unjustifiedly delayed.
In brief, the Supreme Court has agreed to adjust a patent´s term, whose underlying statutory rationale was otherwise deemed unconstitutional by the same Court. The latest decision only seems to be dissonant with 2021´s opinion. It was not.
Ultimately, the most recent decision did not reinstate impacts the unconstitutional decision. Not at all. It has fascinatingly examined the matter from a different angle. Yes, there is no automatic, all-inclusive-type patent term adjustment. Yet, no, the Judiciary branch is not barred from extending the validity of a patent should the features of a specific case evidence that the PTO´s unjustified delay has harmed a patent’s organic, original validity.
Call it semantics or legal reasoning. Interesting move, nonetheless. It is relevant to say that such a decision was written by a single Justice and may be subject to review.
While other doomed “statutory patches” await review by Brazilian Congress, the “case-by-case” scenario seems to continue supporting PTA-related discussions. Patent players will still have difficulty addressing that single and direct opening question. How long does patent protection last in Brazil? Well, it varies…