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The Brazilian Superior Court, located in Brasilia, the last instance for discussions of decisions that contravene federal laws, has recently decided as valid a pharmaceutical patent for HIV treatment.

The dismissed case was about a patent granted for Abbot Laboratories, a company from United States of America. The pharmaceutical patent is related to the medicine Kaletra, an antiviral for the HIV treatment.

The patent of the case was analysed by the Brazilian Patent and Trademark Office without an exam of the patentability in Brazil, once it was granted as a pipeline patent, when the Brazilian autarchy must revalidate the exam made abroad.  The pipeline patents were provided by the Brazilian industrial property legislation and had to be required in Brazil during the first year after the publication of the Brazilian Industrial Property law, occurred on 14 May, 1996, since the previous legislation did not allow pharmaceutical patents.

The nullity action was filed by another company, arguing essentially that the Brazilian Autarchy did not analyse properly the legal requirements for patentability and has granted the patent without a preliminary consent of the Brazilian National Health Surveillance Agency, regarding the possible risks of the medicine to the public health.

During the lawsuit, the federal judge of the first instance has decided as null the patent, being that sentence reformed by the Federal Circuit Court of Rio de Janeiro, since the consent of the Brazilian National Health Surveillance Agency was given during the lawsuit. Thus, the Brazilian Superior Court considered also the lack of that consent as a defect possible to be provisioned even after the patent was granted, since the pharmaceutical company should not be penalized for this delay of the Brazilian National Health Surveillance Agency.

Lawyer Author of the Comment: Rodrigo Britto de Albergaria
Headline: “Terceira Turma mantém validade da patente de medicamento usado no tratamento da Aids”

“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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