Innovation Council is monitoring changes to the Brazilian Patent Law. The recent Supreme Court ruling, published on May 12, 2021, finding that the sole paragraph of Article 40 of the Brazilian IP Law, which granted a minimum patent term of 10 years from grant, was unconstitutional, has significant implications for patents related to pharmaceutical products and processes, as well as equipment and processes related to healthcare that were granted prior to May 12, 2021. Unlike all other patents granted prior to May 12, 2021, those excepted patents lose the benefit of a minimum patent term of 10 years from grant, and they will expire 20 years from their filing dates. All patents granted after May 12, 2021, will expire 20 years after their filing dates. Delays in the examination of patent applications and the grant of patents after more than 10 years from the filing dates will result in lesser terms of enforcement from those that were entitled to a minimum term of 10 years from grant.
Although the average pendency of patent applications is being steadily reduced by INPI, Brazilian patent applicants should take advantage of procedures implemented by INPI to accelerate the grant of patents and to maximize the term of enforcement of the patent. From an innovator perspective, the Brazilian legislature would do well to accelerate passage of the pending bill, which provides for extension of the patent term in the case of unreasonable delays in examination by INPI.