On April 17, 2018 the Superior Court of Justice had the opportunity to analyze the first Special Appeal addressing the term of protection for mailbox patents and decided that these patents are not entitled to the minimum term of protection provided by article 40, sole paragraph of Brazilian Industrial Property Act. Mailbox patents are patents for pharmaceuticals and agrochemicals that were filed between the 1st of January, 1995 and 14th of May, 1997– when the TRIPs agreement was already in force in Brazil, but there was no act of law in place authorizing the protection of patents in these fields.
The current Brazilian Industrial Property Act established that these patents could be granted following the rules of head of article 40 (which grants a 20-year term of protection counting from the filing date). The case at stake was related to one of the patents for the drug Soliris, whose patent was granted following article 40, sole paragraph of Brazilian Industrial Property Act – which allows a minimum term of protection of 10 years from grant irrespective of the patent’s filing date. Although the term of protection was limited to 20 years from filing, there was no discussion about the patentability requirements. The full content of the decision is available here.