Constitutional challenge regarding minimum term of patent protection in Brazil: analysis postponed, and preliminary injunction partially granted by Reporting Justice

Fabio Barros

The Brazilian Supreme Court has postponed the analysis of a landmark constitutional case that challenges the legal provision that establishes a minimum period of patent protection of 10 years counted from the date of grant. In view of that, however, the Reporting Justice decided to partially grant preliminary injunctive relief only in connection to pharmaceutical and medical applications– that is, once the decision is published, this preliminary injunction should prevent the Brazilian PTO from applying the challenged provision when it comes to granting pending applications related to the pharmaceutical and medical industries. In other words, forthcoming patents in these fields would no longer benefit from the 10 years from grant minimum term of protection. The decision issued by the Reporting Justice expressly mentions that this injunction is not to be applied retroactively, citing the statute governing constitutional challenges. This injunction can be subject to an appeal, and should be in force until the Supreme Court has an opportunity to analyze the merits of this case, which might occur on April 14 or on a later date. In addition to partially granting injunctive relief, the Reporting Justice also made available his opinion about the merits of the case, indicating that he understands the challenged provision violates the Federal Constitution. The opinions from the other ten Justices is yet to be known.

At Daniel Law, we are closely monitoring this case, and will keep you duly informed. Please contact us if you want to know how this injunction or a subsequent decision from the Supreme Court may impact your business in Brazil.

The Brazilian Supreme Court has postponed the analysis of a landmark constitutional case that challenges the legal provision that establishes a minimum period of patent protection of 10 years counted from the date of grant. In view of that, however, the Reporting Justice decided to partially grant preliminary injunctive relief only in connection to pharmaceutical and medical applications– that is, once the decision is published, this preliminary injunction should prevent the Brazilian PTO from applying the challenged provision when it comes to granting pending applications related to the pharmaceutical and medical industries. In other words, forthcoming patents in these fields would no longer benefit from the 10 years from grant minimum term of protection. The decision issued by the Reporting Justice expressly mentions that this injunction is not to be applied retroactively, citing the statute governing constitutional challenges. This injunction can be subject to an appeal, and should be in force until the Supreme Court has an opportunity to analyze the merits of this case, which might occur on April 14 or on a later date. In addition to partially granting injunctive relief, the Reporting Justice also made available his opinion about the merits of the case, indicating that he understands the challenged provision violates the Federal Constitution. The opinions from the other ten Justices is yet to be known.

At Daniel Law, we are closely monitoring this case, and will keep you duly informed. Please contact us if you want to know how this injunction or a subsequent decision from the Supreme Court may impact your business in Brazil.

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