9 de April de 2021

The Term of Patents in Brazil: what a difference a day makes!

Changes in the preliminary injunction granted by the Brazilian Supreme Court

As per our Newsletter No. 7/2021, on April 7th, 2021, the Brazilian Supreme Court initiated the judgement of the lawsuit which discuss the term of patents validity in Brazil, namely the Direct Plea of Unconstitutionality No. 5529 (‘DPU’). The DPU Reporting Justice, Mr. Dias Toffoli, considered appropriate to advance his opinion on the merits of the DPU, by granting a preliminary injunction.

Remarkably, after one day from the grant of the preliminary injunction, Justice Toffoli rendered a new decision substantially changing the scope of the injunction, aiming “the clarification of the concrete impacts of the decision”. Apparently, there was an error in the previous decision (that made reference to “patents” – which is understood as already issued patents –, and the new decision now expressly makes reference to patent applications).

Thus, according to the (new) decision rendered on April 8th, 2021, the Brazilian Patent and Trademark Office (‘BPTO’), shall not henceforth grant any patent with a term beyond 20 years from filing to patents related to “pharmaceutical products and processes and equipment/material used for health services”. This judicial seal, according to the new decision, is limited to pending applications, and issued patents currently still in force are not affected.

Mr Toffoli also advanced his personal understanding that the effects of the final decision (to be rendered in the near future by the 11 Justices of the full Court) should retroactively cancel all issued patents that are currently enjoying a term of protection longer than 20 years from filing. We shall eventually know if other Justices have the same opinion.

The previous decision (of April 7) has now been substituted by this new one (of April 8), that is immediately applicable, and might be revoked, confirmed or modified by the full Court.

In the meantime, as usual, we remain at your disposal for any further clarification, which can be addressed through your usual contact in our office or via e-mail to mail@kasznarleonardos.com.

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