The Union General Advocacy’s (AGU) obtained, in the Superior Court of Justice (STJ), a decision that prevents certain medicines and agrochemical products from remaining unduly protected by patents for a period longer than that established by law.
The action took place in the case of a Special Appeal filed by an Irish university against a judgment handed down by the Federal Regional Court of the 2nd Region (TRF2), within the scope of an incident of resolution of repetitive demands filed by it. The appellant sought to make applicable the then-current sole paragraph of art. 40 of the Industrial Property Law (LPI) – which provided for additional protection for inventions for another ten years, from the administrative granting of the patent privilege – to the so-called “mailbox” patentes.
This patent it refers to pharmaceutical and chemical products for agriculture filled at the Brazilian PTO (INPI) between January 1, 1995 and May 14, 1997, having remained in the “mail box”, awaiting the start of validity of the LPI (Law no. 9.279/96).
However, in the judicial representation of the Brazilian PTO, the AGU argued that the legal text is clear in providing, in its art. 229, sole paragraph, that, for “mailbox” patents, only a period of 20 years from the filing applies, i.e., the moment from which the applicant files an application for obtaining the rights to a creation liable to industrial production.
At the end of the judgment, the 2nd Section of the STJ signed the following thesis: “The initial milestone and the term provided for in the sole paragraph of art. 40 of the LPI are not applicable to patents deposited in the manner stipulated by art. 229, sole paragraph, of the same law (mailbox patents)”.
According to Federal Prosecutor Antonio Cavaliere Gomes, Litigation coordinator of the Specialized Federal Prosecutor’s Office with the Brazilian PTO, the respective decision: “Generates legal certainty for the Brazilian PTO´s performance and, in addition, prevents any important medicines and agrochemicals from remaining unduly protected.” by patents, which would generate a monopoly and consequent increase in their prices, without legal support, harming the public interest”.
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Author: Bruno Arminio, Associate Lawyer at Peduti Advogados.
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“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”