As you may be aware, due to article 229-C of the Brazilian IP Law, as amended by Law No. 10,196/01, whenever a patent application claims a pharmaceutical product or process, consent from the National Sanitary Surveillance Agency (ANVISA) is also required prior to granting the desired patent. This provision, however, has been the source of never-ending controversy and subject to growing attacks since it entered into effect in 2001.

The lack of statutory power of ANVISA to analyse patentability requirements of pharma applications was supported by the Attorney-General’s Office in legal opinions published in 2009 and 2011. Indeed, in their opinion, ANVISA should only make health-based assessments of applications sent for prior consent; prior consent should only be denied to applications in instances that granting the patents would pose health risks. How ANVISA would assess “health risks” on the basis of the information included in patent applications was left unanswered though.