Journal of Intellectual Property Law & Practice, Volume 16, Issue 2, February 2021, Pages 146–149, https://doi.org/10.1093/jiplp/jpaa195
Extract
Introduction: direct plea of unconstitutionality #5529 (ADI #5529)
The Brazilian Supreme Court (STF) is going to analyse patent term provisions for the first time in this century. The case filed by an association representing generic pharmaceutical companies alleges unconstitutionality of the provision establishing a minimum patent protection for patent owners. The issue before the Court is whether patent owners can enjoy a minimum patent term of 10 years from grant. The challenged provision is found in the Brazilian Industrial Property Law (LPI, Article 40, sole paragraph):
Article 40. A utility patent will have a term of 20 (twenty) years and a utility model patent term of 15 (fifteen) years, counted from the filing date.
Sole ¶ The term will not be less than 10 (ten) years for utility patents and 7 (seven) years for utility model patents, counted from grant, except when the BRPTO is barred from proceeding with the substantive examination of the application, due to proven pending judicial decision or for reasons of “force majeure”.
