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Since the Brazilian Supreme Court ruled in 2021 that the Patent Term Adjustment (PTA) provision of the country's IP Statute –guaranteeing a minimum validity term of 10 years after grant for utility patents – is unconstitutional, there has been uncertainty as to whether life sciences patent owners may obtain term extensions in cases involving significant Brazilian Patent and Trademark Office (BRPTO) patent granting delays.

The Supreme Court’s decision threatened to cut short the terms of thousands of pharma and medical device patents. However,48 lawsuits have since arisen in which IP owners are asserting their right to an extended patent term. The outcome of these cases will have major ramifications for the industry in Latin America’s largest economy.

Some of the patentees argue that there is a normative gap in the Brazilian legal order for the patent term adjustment. Theplaintiffs point to, as a solution, the application of foreign law along with customary rules by courts. This claim is grounded in Article 4 of the Introductory Statute to the Norms of Brazilian Law (LINDB), which establishes that when the legal order is silent regarding a matter, the judge shall decide the case according to the analogy, customs, and general principles of law.

Read the full article at: IAM

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