June 2, 2021
On May 12, 2021, the Supreme Court Justices, by a majority, declared the Sole Paragraph of Article 40 of the Brazilian IP Statute unconstitutional with ex nunc effects. This means that all patents granted with a 10-year term of protection from grant before the publication of the final hearing minutes will remain valid, with two exceptions, for which retroactive effects will be applied (ex tunc):
On May 18, 2021, in an official communication published in the Official Gazette #2628, the BRPTO provided the first list of patents officially affected by the Supreme Court decision (ADI #5529). The list contained 3,341 pharma-related patents, which complied with Art. 229-C of the Brazilian IP Statute and had their term of protection reduced or were immediately declared expired. You may find more information about it here.
On June 1, 2021, in a new official communication published in the Official Gazette #2630, the BRPTO provided a second list of patents officially affected by the Supreme Court decision (ADI #5529). According to the WIPO, the list contains 2,114 patents related to medical technologies, which will also have their term of protection reduced or be declared expired, if applicable.
According to the methodology made available by the BRPTO, the following groups shall have their term of protection reduced or will be declared expired by applying the general rule of Art. 40 ex tunc:
Additional lists of patents affected by the Supreme Court’s decision might be provided in forthcoming BRPTO gazettes.