Brazilian Supreme Court declares the unconstitutionality of the 10-year minimum patent term and decision affects pharmaceutical patents already in force

After several weeks of judgement, the Brazilian Supreme Court concluded yesterday (May 12) the judgement of ADI No. 5.529, regarding the 10-year minimum patent term. 

This case was filed in 2016, by the Public Prosecutors’ Office (PPO), challenging the constitutionality of Article 40, sole paragraph, of the IP Law, which provided a minimum 10-year exclusivity term from grant for patents and a minimum 7-year term for utility models.

The legal provision, which had the main purpose to guarantee a minimum term of protection for patent owners in view of the Brazilian Patent Office (“INPI”) historical backlog, was declared unconstitutional by the Court for 9 votes versus 2. This means that patents in Brazil will now be valid for 20 years from filing date, regardless of the time the INPI takes to issue a granting decision.  

A decision on how this ruling will produce effects was reached yesterday also by the majority vote (8 versus 2), and affects pharmaceutical patents already in force.

The chart below summarizes how the Supreme Court decision affects the Brazilian patent landscape: