Brazilian Supreme Court ends with 10-year protection clause in the Brazilian Patent Law

As expected and feared by a large part of the Intellectual Property world, Brazilian Supreme Court has finally ruled that Sole Paragraph 40 of its Patent Law is unconstitutional.

As expected and feared by a large part of the Intellectual Property world, Brazilian Supreme Court has finally ruled that Sole Paragraph 40 of its Patent Law is unconstitutional. However, the Court has decided to limit its ruling’s retroactive effects to (1) patents in the pharma and medical fields and (2) patents that were subject to invalidity lawsuits filed until April 7th 2021, day on which the Reporting Justice Toffoli granted an injunctive relief on the matter.

As a consequence, patents will be affected by this ruling as follows:

1. Pharma and patents for medical use initially granted for 10 years since grant will see their term reduced to 20 years from filing.
2. Patents in other technological fields subject to lawsuits filed before 7th April 2021, initially granted for 10 years since grant will see their term reduced to 20 years from filing.
3. Patents in other technological fields initially granted for 10 years since grant will keep that term.
4. All applications granted after the Supreme Court´s decision of May 6th will be valid for 20 years from filing.

Due to Brazilian Patent Office´s efforts and success in fighting its backlog during the last few years, our experts believe that not many patents will be really affected by this court´s decision, since sole paragraph 40 only applied in cases where patent applications had not been granted within 10 years from filing, which had statistically become the exception in the last times.

However, should you have any questions or concerns about this matter, do not hesitate to reach out to us at latinamerica@herrero.es

H&A

H&A

Communication Department.

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