05/13/2021
The Brazilian Supreme Court has now made its final decision on the term of protection for Patents in Brazil. Further to our report a couple of days ago, the Brazilian SC has now made a decision on modulation of its May 6, 2021 decision to invalidate section 40 of the Patent & Trademark Act, which provided that patents were valid for at least 10 (ten) years as of their issuance. On May 12, 2021, the Court decided that for those patents that already had their terms extended, only those in the area of pharmaceutical products and processes and equipment and/or materials for health use would have their terms shortened. Patents in all other areas that had received the benefit of section 40 would continue to benefit from the extended term unless they were the subject of legal proceedings filed before April 7, 2021. This means that of the 30,648 patents issued with a term extension, only 3,435 would have their terms shortened or be declared lapsed. The Supreme Court also decided to preserved any concrete effects that already happened while the terms of such patents were extended. This means that no one can sure for the payment of royalties during the period when the patent benefited from the unconstitutional section 40.
