Latin America

Update on the expected decision by the Brazilian Supreme Court regarding patent term of protection for Brazilian patents

Posted on 12/04/2021 by balder

Brazil

Still pending issuance of a decision by the Brazilian Supreme Court for the constitutional challenge raised in 2016 regarding minimum terms of protection for patent in Brazil (which was expected to be issued by April 7, 2021 but was finally postponed), the recently preliminary injunction requested by the General Prosecutor Office has been granted so that all health-related patent applications granted from now on will have a maximum 20-year term of protection from filing date. That is, the additional term of protection of 10 years from grant date contemplated under Art 40 of the Patent Law for those cases where patent prosecution had been delayed for more than 10 years will be no longer applicable for patent applications of the pharmaceutical and medical fields.

This measure does not apply for those patents already granted for which the mentioned 10 year term for protection counted as of grant date, if applicable, will remain in force.

The final decision of the Brazilian Supreme Court regarding eventual unconstitutionality of Art. 40 of the Patent Law is especially relevant since there are thousands of granted patents which could eventually expiry immediately or have its protection term suddenly shortened depending on such resolution.

Further developments on this matter will be timely reported. Should you require any further information please merely let us know.