Otto Licks The Brazilian IP community has great expectations for 2014, despite distracting events: a carnival in March, the FIFA World Cup in June and elections in October. The Brazilian IP landscape is likely to be affected by activity at the executive, legislative and judicial branches. The year started with changes in the administration, with the announcement of Otavio Brandelli as the new commissioner for the Brazilian Patent Office (INPI). He replaces Jorge Avila, who held the position for about 10 years, but was recently labelled by the government as “pro-patent”. A career diplomat, and an advocate for the “agenda for development” that Brazil and Argentina presented at the World Intellectual Property Organization (WIPO), Brandelli is known for his strong views about the patent system, especially towards pharmaceutical patents. In his first speech, Brandelli supported a bill (5.402/2013) introduced by House Representative Newton Lima suggesting severe changes to the current patent statute. Lima’s proposal, influenced by recent changes in India, aims at lowering the standards of patent protection and enforcement and raising the bar for patentability. According to the statement, Brandelli plans to organize an event at the INPI with Lima to discuss the bill. An announcement on the INPI website also mentions Brandelli’s support for the competitiveness of local industries. The most controversial statement in Brandelli’s announcement was support for the current workflow between the INPI and Brazil’s food and drug administration (ANVISA) regarding pharmaceutical patents. Between 2008 and 2012 the INPI has undertaken all institutional procedures under the Brazilian legal system to have its relationship with ANVISA established by the highest bodies of the Brazilian administration. However, after a resolution in favor of the INPI, politicians at the cabinet level mocked the system by means of an agreement in which the INPI was forced to drop the decision in its favor. The agreement subverts the patent system in Brazil, giving ANVISA more opportunity to deny patent protection based on political motivations. The severe problems at the INPI were not mentioned, such as the 13 years backlog in patent examination; the lack of motivation of examiners to keep production levels compatible with other offices around the world; or the quality of paper file scanning, which hinders office efficiency. Issues with the INPI’s internal computer programs were also ignored. The agency turned down an offer made by the European Patent Office to use its computer programs free of charge but, to this date, it has not produced an alternative. Legal Reform 2014 promises to be a busy year for the legislative branch too. The possibility of reform of Brazilian copyright law will keep the committees overseeing IP working hard. The second bill affecting the IP regime is the patent reform bill (5.402/2013). Some of the changes that the bill intends to implement are: • Limiting the patent term to 20 years; • Banning patentability of second medical use inventions; • Increasing the standard for inventive step; and • Strengthening ANVISA’s prior approval powers to deny pharmaceutical patents. If patent reform is approved by congress, the Brazilian patent system will be very much aligned with the Indian Patent Act of 2005. Activity in the IP landscape will be seen at courts too. The lawsuit filed against pipeline patents, seeking to declare them unconstitutional, might be decided by the Supreme Court. This is not the only case before the Supreme Court. At the end of 2013, ABIFINA (an association of Brazilian generic companies) filed a lawsuit asking the court to declare unconstitutional the sole paragraph of Article 40 of the Brazilian patent law. The paragraph in question guarantees a minimum of 10 years of patent term from the date of grant. This is one of the most important provisions to protect inventions against the INPI’s backlog. The office of the president, the national congress and the attorney general’s office have submitted briefs asking the court to dismiss the lawsuit. They stated that the sole paragraph of Article 40 is not meant to protect only foreign industries, but also Brazilian companies such as Petrobras and Embraer, that invest in innovation and file patent applications every year. The federal courts have 38 lawsuits filed by the INPI seeking to invalidate over 200 mailbox patents. Despite having the statutory authority to seek the invalidation of a patent, the INPI has never exercised that right. Further, in addition to pharmaceutical inventions, the cases filed seeking to nullify IP over automotive spare parts might have important definitions.
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This article was originally published in “WIPR”, World Intellectual Property Review. For further information, please access the following website: http://www.worldipreview.com/article/brazil-what-to-expect-in-2014