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Amid the global pandemic, the Brazilian Supreme Court’s (STF) judgment is very much expected about action for the declaration of unconstitutionality (ADI 5529) of paragraph of article 40 to the Brazilian Industrial Property Law (or by the Portuguese acronym, “LPI”) filed by Attorney General of the Republic.

In short, the lawsuit seeks to force discussion about the validity of a patent counted from its grant date by BPTO.

According to the rule laid down in article 40, sole paragraph, of the IP Law:

Article 40 – The term of a patent for an invention shall be 20 (twenty) years and for a utility model 15 (fifteen) years as from the filing date.

Unconstitutionality of the sole paragraph in article 40 of the Brazilian IP Law

Sole Paragraph – The term shall not be less than 10 (ten) years for inventions and 7 (seven) years for utility models, as from the date of grant, except where INPI is prevented from carrying out the substantive examination of the application due to pending litigation or for reasons beyond its control.

However, there is divided opinion regarding unconstitutional of paragraph of article 40 to the Brazilian Industrial Property Law among jurists and technology development enthusiasts.

While some argue that the declaration that the article is unconstitutional will be detrimental to various sectors of innovation and technology, mainly because the period of exclusivity warranted to the owner is one of the pillars of the patent system, others maintain that the rule violates devices of procedural celerity on the Brazilian Public Administration and disobeys different constitutional principles, such as freedom of competition and consumer protection, because the rule creates an indefinite term for patents and utility models.

Lawyer Author of the Comment: Sheila de Souza Rodrigues

Source: Global NGO asks govts to support India’s ‘landmark’ proposal seeking IP waiver on Covid-19 drugs

“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”

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