Live: Supreme Court hearing on the constitutionality of Art. 40, Sole Paragraph of Law #9,279/1996 (Brazilian Patent Statute)

For the constitutionality

2

X

9

For the unconstitutionality

16:09

Hearing Adjourned – Decision to be applied with ex nunc effect, except for the pharmaceutical sector and ongoing lawsuits.

By 8 votes to 3, the Brazilian Supreme Court decided to apply the ruling’s effects for the unconstitutionality of the Sole Paragraph of Article 40 of the Brazilian IP Statute.

With the dissenting opinions of Justices Edson Fachin, Rosa Weber, and Marco Aurelio, the proposal to apply the decision’s effects presented by Reporting Justice Dias Toffoli was approved.  Accordingly, the effects of the decision will not be attributed retroactively to patents already granted up until the date of publication of the hearing’s final decision.  The following exceptions will apply (i) patents that were already subject of a lawsuit because of the unconstitutionality of the Sole Paragraph of Article 40; (ii) patents granted under the term of the Sole Paragraph of Article 40, relating to pharmaceutical products and process, and equipment and materials for the use in healthcare.

ADI 5529’s hearing was adjourned

16:09

Justice Luiz Fux - Opinion for applying the decision’s effects

The Chief Justice seconded Justice Luís Roberto Barroso’s opinion, voting to apply the decision’s effects, imposing ex nunc effects without any limitation.

16:07

Justice Marco Aurélio – Opinion against applying the decision’s effects

Justice Marco Aurélio declared that it is not appropriate to apply the decision’s effects since the contested provision was unconstitutional since its conception. Applying a different decision would grant undue privileges to those who have benefited from an unconstitutional provision.

16:02

Justice Gilmar Mendes – Seconds Justice Toffoli’s opinion

Justice Gilmar Mendes fully seconded the Reporting Justice’s opinion.

15:59

Justice Ricardo Lewandowski – Seconds Justice Toffoli’s opinion

Justice Ricardo Lewandowski fully seconded the Reporting Justice’s opinion

15:56

Justice Cármen Lúcia – Seconds Justice Toffoli’s opinion

Justice Cármen Lúcia fully seconded the Reporting Justice’s opinion.

15:55

Justice Rosa Weber – Opinion against the applying the decision’s effects

Justice Rosa Weber seconded the vote of Justice Edson Fachin, stating that the requirements for the decision’s application are not present.

15:53

Justice Luís Roberto Barroso – Opinion for applying the effects of the decision

Justice Luís Roberto Barroso diverges slightly from the Reporting Justice, ruling for the application of the decision’s effects and applying ex nunc effects without any exception.

15:50

Justice Edson Fachin – Opinion against applying the effects of the decision

Justice Edson Fachin diverges from the Reporting Justice’s proposal, stating that the requirements for the decision’s applications are not present.

15:44

Justice Alexandre de Moraes – Seconds Justice Toffoli’s opinion

Justice Alexandre de Moraes affirmed the need to observe legal certainty and seconded the opinion of Reporting Justice Dias Toffoli.

15:41

Justice Nunes Marques – Seconds Justice Toffoli’s opinion

Justice Nunes Marques seconded the vote of the Reporting Justice and suggested changing the phrase “allowed patent” to “granted patent” so that it covers patents granted and not patents pending.

15:37

Justice Dias Toffoli’s opinion

The Reporting Justice proposes that unconstitutionality take effect from the publication of the decision of this hearing. Accordingly, the patents granted by the BRPTO should have a term period relating to the provisions of the header of Art. 40. This will also be the case for patent applications already filed before the BRPTO.

The same conditions apply for pharmaceutical products and processes since the partial granting of the interlocutory decision rendered on April 08, 2021.

He also proposes a cut-off in the decision’s applications effects, to attribute ex tunc effects to (i) lawsuits proposed until April 7, 2021; (ii) patents that on the date of the publication of the hearing are in force with a period defined by the Sole Paragraph of Art. 40, relating to products and processes related to the pharmaceutical area and equipment and materials for use in health.

For item (ii), he also referred to the 25 years of validity of the law to ensure the concrete effects already produced by contracts signed during the period in which the Sole Paragraph of Article 40 also regulated the patent term.

14:42

Supreme Court session restarts – ADI #5529 hearing is resumed

This Wednesday’s (12) session was initiated by the Chief Justice, Luiz Fux, and the hearing of ADI #5529 was resumed. The Justices will debate how the ruling of unconstitutionality shall be applied.

may 06th, 2021

17:50

Hearing Adjourned

The Supreme Court has declared the Sole Paragraph of Article 40 of the IP Statute unconstitutional by a margin of 9 votes to 2.  Following the decision, the Justices initiated a discussion about possible ways to apply the decision over time.

After the Justices expressed divergent opinions, the Reporting Justice proposed postponing debate over the decision’s application to the next Supreme Court session. This proposition was accepted, and Chief Justice Luiz Fux adjourned today’s (6) session.

The ADI 5529 hearing will resume next Wednesday (12), at 2 PM, with the discussion focused on applying the judgment of unconstitutionality.

17:17

Discussion concerning a potentially unconstitutional state of affairs

Justice Gilmar Mendes understands that Justice Dias Toffoli's recommendations to the BRPTO would be mere digressions. Justice Dias Toffoli agrees, conceding that it was really an appeal to the Executive Branch.

According to Justice Carmen Lucia, it is a recommendation to the Executive Branch to comply with the principle of administrative efficiency. This would be, therefore, a foundation and not an integral part of the provision.

Justice Lewandowski, in turn, announces that he limited himself to deciding on unconstitutionality.

17:08

Justice Luiz Fux – an opinion for constitutionality

The Chief Justice, Luiz Fux, affirmed that the challenged provision does not violate the temporary privilege provided for in the Constitution since the latter provides for a minimum validity term to be effective when the patent is granted.

He argued that the Constitution provides for the principle of decision-making within a reasonable time and that the delay of the Public Administration cannot harm society. He concludes, therefore, that the BRPTO’s activity is not in accordance with this principle, and this burden cannot be transferred to society.

He further stated that the patent application filing creates a mere expectation of right and that retroactive effect does not protect the invention.

Regarding drug patents, the Justice stated that part of the delay is also ANVISA’s responsibility, in addition to BRPTO, to the detriment of the patent applicant.

He states that it is necessary to observe the consequences of the hearing’s decision. In this case, the declaration of unconstitutionality of the challenged provision will punish the patent holder harmed by the BRPTO’s delay. Furthermore, it will undermine the stability of the Brazilian patent system and the country’s economy.

The Justice concludes his opinion by affirming the constitutionality of the challenged provision.

16:54

Justice Luiz Fux begins to deliver his opinion

Justice Luiz Fux is the eleventh, and final Justice to render his opinion on the merits of ADI 5529

16:53

Justice Marco Aurélio Mello – an opinion for unconstitutionality

Justice Marco Aurélio delivers his opinion in favor of the unconstitutionality of the Sole Paragraph of Article 40

The patent term of the header of Art. 40 accords with the TRIPS agreement and the European Patent Convention concerning the monopoly of patents.

The header of Art. 40  offers 20 years of protection from the filing for invention patents and 15 years for utility models.  Art. 44 generates exclusivity and the possibility of exploration. The sole paragraph of Art. 40 creates insecurity since it does not conform with  Article 44. The temporary characteristic is in the interests of Brazilian society, and this precept is laid out in the constitution. It stipulates market freedom and competition that guarantees citizens better prices.

The Sole Paragraph conflicts with the header of its own Article own header since it creates a second initial term for protection.

However, Justice Marco Aurélio disagrees with the Reporting Justice regarding the BRPTO, ANVISA and the Ministry of Sciences determinations. Justice Marco Aurélio also believes that there is no room for modulating the effects of the decision of dismissal.

16:40

Justice Marco Aurélio Mello begins to deliver his opinion

Justice Marco Aurélio Mello is the tenth Justice to render his opinion on the merits of ADI 5529.

16:40

Justice Gilmar Mendes – an opinion for unconstitutionality

Justice Gilmar Mendes affirms that the right to industrial property is relevant and fundamental, especially in the context of a globalized economy. However, he argues that the constitutional provision cannot be undermined by administrative delay to the detriment of society. Accordingly, if the BRPTO proceeds with the analysis of patent applications within a reasonable period of time, the validity term provided in the general rule of Article 40 will be applied. Otherwise, the questioned provision will be applied.

He understands that the challenged provision is unconstitutional and references the TCU audit report to address the extension of patent terms for drugs, impacting the supply of generic drugs, with severe losses to the public treasury.

The Justice states that the BRPTO has addressed its backlog, making efforts to shorten the application of the deadline provided in the Sole Paragraph of Article 40 of the IP Statute to achieve its goal by the end of 2021.

However, he notes the patent granting administrative process includes a deadline for the applicant to request a technical examination. This feature is one of the reasons for the BRPTO's delay. Thus, he concludes that the applicant partially causes the BRPTO's delay and causes great damage to the economy.

It claims that the challenged provision was conceived as an exception but had its application extended because of administrative delays. Finally, he concluded by fully agreeing with the opinion of the Reporting Justice for the unconstitutionality of the Sole Paragraph of Article 40 of the IP Statute.

16:18

Justice Gilmar Mendes begins to deliver his opinion

Justice Gilmar Mendes is the ninth Justice to render his opinion on the merits of ADI 5529

16:17

Justice Ricardo Lewandowski – an opinion for unconstitutionality

Justice Ricardo Lewandowski begins by announcing that he will make his remarks brief only citing the University of São Paulo’s Law and Poverty Group study.

He points out that the average patent term exceeds the protection time in 30 jurisdictions. Second, the BRPTO has a comparable number of examiners as other jurisdictions, and that the device severely impacts the health system. Fourth, he argues that even highly innovative countries, such as the USA, have a stricter patent system. Fifth, no patent system in the BRICS countries maintains a patent term as in Brazil. Finally, of the ten patents with the longest validity terms in Brazil, nine are from the pharmaceutical industry.

So, he concludes that there is no doubt about the dysfunction of the device under question and that it excessively burdens consumers.

Thus, the Sole Paragraph violates Art. 5, XXIX, and Art. 170, contributing to a scenario of poverty and poor access to products.  He concludes that the right to health, provided by Article 196 of the Constitution, is vulnerable since there would be an excessive burden on the health system.

16:10

Justice Ricardo Lewandowski begins to deliver his opinion

Justice Ricardo Lewandowski is the eighth Justice to render his opinion on the merits of ADI 5529

16:09

Justice Cármen Lúcia – an opinion for unconstitutionality

The Justice affirms that, notwithstanding the 25-year validity of the Law, there is indeterminate validity term, in opposition to the temporary privilege the Constitution provides for.

The Justice also declares that the temporary privilege provided by the Constitution already denotes an exception admitted to the general regime that is intended to enable sharing of scientific knowledge for the benefit of society.

The Justice understands that the uncertainty and indetermination existing in the term provided for in the Sole Paragraph of Article 40 violates the constitution, and makes the provision unnecessary, inadequate and with effects that are opposed to the principles established in the Constitution.

Justice Cármen Lúcia concluded her opinion in favor of unconstitutionality, referring to the Reporting Justice’s opinion on the merits but diverging regarding the existence of an unconstitutional state of affairs.

16:00

Justice Cármen Lúcia begins to deliver her opinion

Justice Cármen Lúcia is the seventh Justice to render her opinion on the merits of ADI 5529.

15:59

Justice Rosa Weber – an opinion for unconstitutionality

Justice Rosa Weber delivers her opinion for the unconstitutionality of the Sole Paragraph of Article 40.

According to Justice Rosa Weber, the temporary privilege to be granted by inventors is only legitimate if it is aimed at the social benefit and technological development of the country.

The unpredictability of the challenged provision, allows for an indeterminate valid patent term, directly attacking the fundamental precept of intellectual property rights, which must be temporary.

The Sole Paragraph alters the patent's temporariness, by establishing an a quo term, marked by an uncertain future term, allowing patents with virtually undetermined terms. The challenged provision is unconstitutional and anti-systemic. The indeterminate term harms the Constitution by creating a disincentive for technological development in the country.

The Sole Paragraph does not conform to the constitutional provision, since it contradicts Article 5, XXIX, 78 and 170, iv of the Brazilian Constitution.

Justice Rosa Weber delivers an opinion for unconstitutionality but does not acknowledge there is also an unconstitutional state of affairs.

Finally, she concludes by fully agreeing with the opinion of the Justice Alexandre de Moraes for the unconstitutionality of the Sole Paragraph of Article 40 of the IP Statute.

15:50

Justice Rosa Weber begins to deliver her opinion

Justice Rosa Weber is the sixth Justice to render her opinion on the merits of ADI 5529.

15:27

Debate over the retroactivity of Article 44 of the IP Statute

After Justice Luís Roberto Barroso's opinion, a debate starts between Justices Marco Aurélio Mello, Dias Toffoli, Luiz Fux, Luís Roberto Barroso and Alexandre de Moraes regarding Article 44 of the IP Statute and the right to be indemnified retroactively once a patent is granted. They discuss whether the applicant has privilege between the date of filing and the granting of the patent.

15:26

Justice Luís Roberto Barroso - an opinion for constitutionality

According to Justice Luís Roberto Barroso the ADI deals with a minimum patent validity term.

He affirms there is a discussion about whose responsibility it should be for a failure of the public administration. Although he agrees with the purposes intended in the opinion of the Reporting Justice, he does not agree with the conclusion.

The Justice states that there are three important questions to be addressed: First, one must consider that the provision has been in effect for 25 years. Second, this provision only exists and only makes sense because the BRPTO takes more than 10 years to analyze a patent application. So, the BRPTO is responsible for the administrative delay. Third, it is necessary to know whether one is making a political decision or on a constitutional interpretation.

The Justice affirmed the complexity of the matter, and highlighted the opinions of Daniel Sarmento, Carlos Ari Sundfeld, Francisco Rezek, Ellen Gracie, and Sepúlveda Pertence. Justice Barroso recognized the importance of the patent system with a determined term for innovation and the encouragement of research.

He affirmed that in Brazil, the general regime is established by the header of Art. 40 of the IP Statute, which establishes the validity term from the date the application is filed. The Sole Paragraph, in turn, ensures that once the patent is granted, its owner is entitled to at least 10 years of exclusivity. For the Justice, the vital question is whether the right to exclusivity exists between the application and the granting of the patent.

Justice Barroso recognizes that Article 44 does not bring forward the patent owner’s right. Therefore, the Brazilian patent system does not ensure exclusivity from the application, but only with the granting of the patent.

The dominant interpretation of the STF is that, prior to the granting of the patent, what exists is expectation of right. In this sense, it cites the jurisprudence of lower courts that also recognize that, until the granting, there is no exclusivity. Thus, if there is no right to exclusivity, the inventor is not enjoying the privilege of protection.

Justice Barroso recognizes that the BRPTO has a bigger backlog than in the US and in the European Union. According to him, the provision is the product of a public service deficiency. Finally, he highlights that the BRPTO is reducing the analysis period and that, therefore, this provision will lose its reason for existing.

He argues that the right to health is preserved to the extent that institutions have incentives to develop innovative research. It is also a matter of public policy.

For the Justice, there is no violation of the Constitution for the following reasons: (i) there is no violation of temporariness or legal certainty, because the validity term is determined: 10 years after the patent is granted. If the BRPTO delays, the inventor cannot be held responsible; (ii) there is no violation of isonomy, because everyone who has their application delayed, therefore, in the same situation, will have the same validity term; (iii) there is no violation of free competition and consumer rights, because the Constitution itself weighs the granting of an exclusivity period. The Constitution itself understands that the patent is the legitimate institute; and (iv) it understands that the objective responsibility of the State is precisely to say that society bears losses for damages caused by the State.

Thus, the Justice believes that there is no violation of the Constitution and that, therefore, it is a matter reserved to the legislative branch.

The Justice concludes his opinion for constitutionality. He understands there is no discussion about the quality of the rule, only an analysis of compatibility with the Constitution.

14:44

Justice Luis Roberto Barroso begins delivering his opinion

Justice Luis Roberto Barroso is the fifth Justice to render his opinion on the merits of ADI 5529.

14:43

Justice Edson Fachin – an opinion for unconstitutionality

Justice Edson Fachin argued that protection of intellectual property cannot outweigh the supply of essential products to society. He stated that patent protection is equal before the law, which on the one hand protects the inventor, and on the other hand encourages new inventions, allows their development, and encourages the owner of the invention to continue innovating, or perfecting their invention. He reiterated, on the other hand, that it is an institution that has temporal limitations.

He stated that the general rule is that of freedom of market, and that the legal regime corresponding to industrial property rights is an exception, and that it should be examined from multiple perspective including societal interest.

He also mentioned that the uncertainty of the term of protection conflicts with fundamental rights, especially social rights, and the economic order, because citizens are potential beneficiaries of industrial innovation. The time and certainty concerning the period of validity must be preserved. The privileges of patent holders should be weighed against the right of collective use of inventions.

He claimed that the exercise of IP protections cannot cross the sphere of the use of that protection, to preserve competition. The elimination of competition is a blow against the very foundation of freedom, which must be enhanced.

He reiterated the importance of legal certainty as a fundamental right that constrains the indefinite period of the validity of patent protection.

Finally, he concluded by fully agreeing with the opinion of the Reporting Justice for the unconstitutionality of the sole paragraph of Article 40 of the IP Statute.

14:25

Justice Edson Fachin begins delivering his opinion

Justice Edson Fachin is the fourth Justice to render his opinion on the merits of ADI 5529

14:23

Supreme Court hearing restarts – ADI #5529 hearing is resumed

This Thursday’s (6) session was initiated by the Chief Justice, Luiz Fux, and the hearing of ADI #5529 was resumed. Justices Edson Fachin, Luis Roberto Barroso, Rosa Weber, Luiz Fux, Cármen Lúcia, Ricardo Lewandowski, Gilmar Mendes and Marco Aurélio Mello will all deliver their opinion.

may 05th, 2021

17:59

Hearing Adjourned

After Justice Alexandre de Moraes’ delivered his opinion, Chief Justice Luiz Fux adjourned today's (5) session. The hearing of ADI 5529 will resume tomorrow, Thursday (6), at 2 PM.

17:58

Justice Alexandre de Moraes – an opinion for unconstitutionality

According to Justice Alexandre de Moraes, the National Congress does not have the competency to determine if it is – or it is not - a temporary natural right. Thus, the National Congress must establish the criteria for determining patent terms.

The Justice also stated that patent protection is essential to innovation. However, the Sole Paragraph results in an imbalance between patent protection and society’s right to take advantage of that patent. He argued that the patent right itself is not discussed. What is discussed is the term of protection that must respect the duality of protection/use by society.

The challenged provision did not establish the patent right from the application, but only in he future, when the patent is granted. Therefore, it allows for an indeterminate term of patent validity that depends on the administrative procedure duration.

The Justice stated that the challenged provision violates principles of efficiency, decision making within a reasonable time, and impartiality. The terms established by the header of Article 40 are similar to provisions employed in other jurisdictions and respect all international treaties signed by Brazil. On the other hand, by extending the term of validity, the law allows a monopoly since it prevents competitors from using the patented technology.

The Sole Paragraph accords a disproportionate weight to the term of validity since it would be up to the public administration to choose which patent application would be granted.

Justice Alexandre de Moraes concluded his opinion in favor of unconstitutionality, referring to the Reporting Justice’s opinion on the merits but diverging regarding the existence of an unconstitutional state of affairs. According to the Justice, it is not a matter of lack of protection for industrial property, but rather the lack of definition in the term established by the Sole Paragraph of Art. 40.

17:35

Justice Alexandre de Moraes begins to deliver his opinion

Justice Alexandre de Morais is the third Justice to render his opinion on the merits of ADI 5529.

17:34

Justice Nunes Marques – an opinion for unconstitutionality

Justice Nunes Marques began his opinion by emphasizing the importance of such a hearing for industrial property in Brazil.

He stated that property rights are guaranteed in Brazil through an exclusive temporary economic exploitation to secure the promotion of innovation. He understands, however, that there is an apparent conflict between the individual rights of the inventor and those of society in taking advantage of the invention.

Regarding the term of validity, Justice Nunes Marques referenced the general rule of the header of Art. 40 of the IP Statute, and supports the opinion of the Reporting Justice, in considering that the extension mechanisms (PTA and PTE) are exceptional.

He acknowledges that, although the time between the application and the patent grant an expectation of right exists, Article 44 of the IP Statute would already be sufficient to guarantee the rights of the inventor, as it is sufficient to constrain possible competitors and to ensure the inventors’ rights.

According to the Justice, the application of the Sole Paragraph makes the term both extended and undetermined, which does not fit a country that prioritizes a free market. He affirms that the Sole Paragraph guarantees an extension of the validity term since it depends on the administrative process within the BRPTO, which, in turn, is in agreement with the opinion delivered by the Reporting Justice, which is an unconstitutional state of affairs.

Thus, he understands that the provision is unconstitutional because it violates the due process of law (Art. 5, LIV) and the temporary privilege (Art. 5, XXIX), free competition (Art. 170, IV), and consumer protection (Art. 170, V).

The Justice referenced some drugs potentially helpful in combating the Covid-19 pandemic, such as Remdesivir, that would receive term extension under Article 40, Sole Paragraph of the IP Statute.

He also pointed out that, although the header of Article 40 is based on Article 33 of the TRIPS Agreement, the Sole Paragraph of Article 40 generates excessive protection.

Moreover, Justice Nunes Marques recognizes an unconstitutional state of affairs exists regarding the patent term in Brazil. Therefore, he concludes the Executive Branch must act to solve the BRPTO’s delay in examining patent applications.

17:03

Justice Nunes Marques begins to deliver his opinion

Justice Nunes Marques is the second Justice to render his opinion on the merits of ADI 5529.

17:02

Hearing Resumed

The sitting has been resumed and the other Justices will now issue their opinions, begining with Justice Nunes Marques.

16:15

Hearing Adjournment

After Justice Dias Toffoli finished issuing his opinion on ADI #5529, the hearing was adjourned by the Chief-Justice.

16:14

Justice Dias Toffoli – an opinion for unconstitutionality

Justice Dias Toffoli delivered his opinion in favor of declaring the Sole Paragraph of Article 40 unconstitutional. The Reporting Justice proposed adopting the decision of unconstitutionality over time, giving it an ex nunc effect, from the publication of this judgment. However, the decision would take ex tunc effect on patents granted with an extension of term related to pharmaceutical products and processes, equipment, and materials for use in health.

15:56

Justice Dias Toffoli’s opinion recognizes an “unconstitutional state of affairs” within the Brazilian patent system

Justice Dias Toffoli argues that there is an “unconstitutional state of affairs” concerning patent validity in Brazil.

Justice Toffoli lists four specific reasons: (i) the delay of the BRPTO in analyzing the patent applications; (ii) the “additional” term granted by the sole paragraph of Art. 40, Brazilian IP Statute; (iii) the longer patent term in Brazil compared to other jurisdictions; and (iv) the BRPTO’s inefficiency in solving its internal problems.

According to the Justice, all those reasons contribute to the  BRPTO’s administrative misconduct of patent applications.

15:45

According to Justice Dias Toffoli, the challenged provision violates the social function of intellectual property, free competition, and consumer protection

According to Justice Dias Toffoli, the challenged provision violates the social function of intellectual property (Article 5, item XXIX, article 170, item iii, Brazilian Constitution), free competition, and consumer protection.

The patent’s temporary nature allows it to exist in harmony with property’s social function. It protects the patentee’s rights over their invention for a given term, encouraging and rewarding investment in innovation. The whole of society benefits when a patent term expires and its subject matter enters the public domain.

According to Justice Dias Toffoli, the challenged Article impedes the activity of economic agents in industry for a period that may be unpredictably and indeterminately extended, allowing an industrial property to have an unreasonably long protection term. Therefore, it violates free competition and consumer protection.

15:25

Reporting Justice analyzes violation of legal certainty and Art. 5, XXIX of the Constitution

Justice Dias Toffoli claimed that the challenged provision violates legal certainty and Art. 5, XXIX of the Constitution by providing an indeterminate term of validity for patents.

He stated that the provision allows strategies by patentees to extend the term of their exclusive exploitation of products and subverts the logic contained in Article 5 XXXIX of the Constitution, which provides for a temporary privilege in recognition of societal interest and technological and economic development of the country.

He argued that the temporality provided for in the Constitution provides that patent protection should be granted according to clear rules and reasonable time not to grant undue competitive advantage.

Justice Dias Toffoli mentioned Article 44 of the IP Statute, which protects the ungranted patent application. He also claimed that its joint application with the Sole Paragraph of Article 40 means there is an extension of patent protection.

He concluded that the provision challenged allows an indefinite privilege and infringes individual and collective rights that arise from the extinction of the patent.

15:05

Reporting Justice analyzes the challenged provision’s impacts on the pharmaceutical sector

Justice Dias Toffoli’s opinion began with an analysis of the impacts of the Sole Paragraph of Article 40 of the IP Statute on the pharmaceutical sector and the potential for violating the right to health.

He mentioned AB2L’s brief (presented by Licks Attorneys) on the patent system’s importance for technology sectors other than the pharmaceutical sector.

Nevertheless, Justice Dias Toffoli argued that the enactment of the IP Statute particularly impacted the pharmaceutical sector, which is the one with the most prolonged delays at the BRPTO.

He also invoked the Federal Court of Accounts’ report, and a study filed to the dockets to prove that there is a significant impact from the extension of the term of the patents on the Universal Healthcare System (SUS), referring to the increased price of the drugs, and their effect on public spending and access for the populous.  He argued that this situation was even more detrimental in the context of coping with the Covid-19 pandemic.

Finally, he concluded by stating that the alleged extension of patent validity terms directly affects the country’s public health policies and affects citizens’ access to drugs, public policy, and health services.

14:40

Continuation of Justice Dias Toffoli’s opinion

The Reporting Justice’s opinion continues as he argues for the unconstitutionality of the challenged provision. The Justice has provided a comparative analysis of the effective, valid term of patents in Brazil to the international scenario.

The Justice states that Brazil tops the list of five countries with the longest effective term of patents, being the only developing country, which he argues would put Brazil at a considerable disadvantage in the international arena regarding access to drugs.

He also claims that foreign applicants are treated more generously than in their own country’s patent systems. Brazil would be isolated in the international community because it is the only country to provide patent term extension.

14:23

Supreme Court hearing starts – ADI #5529 hearing is resumed

This Wednesday’s (5) session was initiated by the Chief Justice, Luiz Fux, and the hearing of ADI #5529 is resumed. Reporting Justice, Dias Toffoli, will continue to read his opinion during today’s session, after which the other Justices shall issue their opinions.

April 29th, 2021

18:07

Hearing Adjourned

Due to the length of Reporting Justice Dias Toffoli’s opinion, not yet finished, this Thursday’s hearing was adjourned by Chief Justice Luiz Fux. The hearing of ADI 5529 will be resumed next Wednesday (05/05), at 2 PM.

18:05

Continuation of Justice Dias Toffoli’s opinion

The reporting Justice’s opinion is in favor of the challenged provision being declared unconstitutional. The Justice invoked the backlog at the BRPTO, and the Sole Paragraph of Article 40 of the IP Statute, to argue that there is a violation of the principle of decision making within reasonable time (Art. 5, LXXVIII, CF) and the principle of efficiency of public administration (Art. 37, caput, CF).

He states that the challenged provision induces non-compliance with deadlines by the BRPTO, by mitigating the consequences of administrative delays and delaying behavior by applicants aiming to maximize the extension of the patent granting process.

He cites the BRPTO’s reply in the dockets to illustrate the high average wait time for granting patents in various technological sectors and to quantify the patents granted under the term of the challenged provision.

He also cites the Federal Board of Accountant’s report to illustrate the weakness and challenges to the scope of the BRPTO’s actions, addressing an insufficient number of human and technological resources. He goes on to point out that the report concludes by recommending the repeal of the contested provision.

In this regard, the Justice concludes there is a government consensus in favor of revoking the provision.

16:58

Hearing Resumed

The sitting has been resumed and Justice Dias Toffoli will continue issuing his opinion.

15:53

Hearing Adjournment

After Justice Dias Toffoli finished presenting the premises of his opinion on ADI #5529, the hearing was adjourned by the Chief-Justice.

15:47

Continuation of Justice Dias Toffoli’s opinion

Continuing to present his opinion, the Reporting Justice argued that the Sole Paragraph of Article 40 of the IP Statute was not adequately discussed in the enactment of the IP Statute and provides for a variable period of patent validity, which may exceed the period of validity provided for in the header of Article 40. He also claimed that the challenged provision aimed to compensate for the patent backlog and delays at the BRPTO, a phenomenon that existed for years without solution.

Next, the Reporting Justice addressed the international patent scenario, to affirm that there is no parallel to the Sole Paragraph of Article 40 of the IP Statute in the world and that the Sole Paragraph is a TRIPS-Plus provision. He also stated that the declaration of unconstitutionality of the challenged provision would not result in non-compliance with international agreements signed by Brazil, such as TRIPS.

15:22

Justice Toffoli's Opinion

Justice Toffoli began by outlining the premises of his opinion, exploring arguments related to the legal regime of patents, highlighting the aspect of temporariness and its significance for society and technological and economic development.

He also dealt with the process of patent granting by the BRPTO and concluded with the statement that patent protection does not start with the decision to grant the application; once the patent is granted, the protection provided is retroactive to the date the application was filed.

14:54

Justice Dias Toffoli begins to issue his opinion

Justice Dias Toffoli, Reporting Justice for ADI 5529, begins to issue his opinion, introducing the beginning of voting on ADI 5529.

14:33

Supreme Court hearing starts – ADI #5529 hearing is resumed

This Thursday’s (29) session was initiated by the Chief Justice, Luiz Fux and the hearing of ADI #5529 is resumed. During today’s session, the Justices shall issue their opinions, starting with Reporting Justice Dias Toffoli’s opinion.

April 28th, 2021

18:12

Hearing Adjourned

After the amici curiae oral arguments, this Wednesday's hearing (28) was adjourned by the Chief-Justice Luiz Fux. ADI 5529 hearing will be resumed tomorrow (29), at 2 pm.

18:08

Croplife oral arguments - for constitutionality (Dr. Eduardo Hallak)

Croplife (represented by Dr. Eduardo Hallak) finalized its oral argument, requiring the declaration of the constitutionality of the Sole Paragraph of Art. 40 of the IP Statute.

With the end of the Sole Paragraph of Article 40, patents can be granted stillborn.

There is no extension of term in Brazilian law. What exists in Brazil are two different models concerning the term of the patent: 10 years from grant or 20 years from filing.

Comparative law shows examples of countries with an extension of terms, such as the United States and China.

The agribusiness area sees the focus of judgment on the pharmaceutical sector as problematic and indicates that the sector may suffer huge losses as a result.

18:02

ASIPI oral arguments – for constitutionality

ASIPI (represented by Gabriel Francisco Leonardos) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute be declared constitutional.

18:00

DPU oral arguments – for unconstututionality

DPU (represented by Gustavo Zortéa da Silva) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute be declared unconstitutional.

17:58

ABINEE oral arguments - for constitutionality (Dr. Regis Arslanian)

ABINEE (represented by Dr. Regis Arslanian) finalizes its oral argument, requesting the declaration of the constitutionality of the  Sole Paragraph of Art. 40 of the IP Statute.

A real campaign was created against the Sole Paragraph of Art. 40, but none of the drugs mentioned by the FPO would be used to combat the disease effectively.

Other technology sectors, such as telecommunications and the electricity sector, will lose thousands of patents. At this time, given the 5G auction, legal certainty in Brazil is of paramount importance.

With the advancement of the backlog end program, the BRPTO seeks to make the aforementioned paragraph a dead letter.

17:55

ANPEI oral arguments– for constitutionality

ANPEI (represented by Luiz Augusto Lopes Paulino) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute to be declared constitutional.

17:53

Pró-Genéricos and Farmabrasil oral arguments – for unconstitutionality

Pró-Genéricos (represented by  Marcus Vinícius Furtado Coelho) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared unconstitutional.

17:49

IBPI oral arguments – for unconstitutionality

IBPI (represented by Felipe Santa Cruz) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared unconstitutional.

17:47

AB2L's oral arguments - for constitucionality (Dr. Otto Banho Licks)

AB2L (represented by Dr.Otto Banho Licks) finalizes its oral argument, requesting the declaration of the constitutionality of the Sole Paragraph of Art. 40 of the IP Statute.

According to AB2L, there is no extension of the patent term. What there is, in fact, is an unconstitutional state of affairs in the BRPTO administrative process.

Each patent has only one term: either it will be the term provided forin the header of Art. 40 or it will be the period provided for in the Sole Paragraph of Art. 40 of the IP Statute.

Similar rules have been in force in Brazil for 187 years.

17:42

ABAPI oral arguments – for constitutionality

ABAPI (represented by Marcelo Martins de Andrade Goyanes) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute to be declared constitutional.

17:40

ABIFINA’s oral arguments - for unconstitutionality

ABIFINA (represented by Pedro Marcos Nunes Barbosa) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared unconstitutional.

17:38

ANDEF’s oral arguments – for constitutionality

ANDEF (represented by Rodrigo de Bittencourt Mudrovitsch) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute to be declared constitutional.

17:36

INTERFARMA’s oral arguments - for constitutionality

INTERFARMA (represented by Gustavo Freitas de Morais) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared constitutional.

17:34

ABPI’s oral arguments - for constitutionality

ABPI (represented by Luiz Henrique do Amaral Silva) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared constitutional.

17:32

AgroBio oral arguments - for constitutionality (Dr. Liliane Roriz)

AgroBio (represented by Dr. Liliane Roriz - Licks Attorneys) finalizes its oral argument, requesting the declaration of constitutionality of the Sole Paragraph of Art. 40 of the IP Statute.

Among the arguments presented, she noted that large companies left Brazil this year for several reasons, including legal uncertainty.

The US Supreme Court has already ruled on industrial property matters to indicate that changes in the matter must occur through the Legislative. According to Minister Sepulveda Pertence's opinion, the Sole Paragraph is a creative excess of the Legislative Power.

With the new efforts of the BRPTO, it is impossible to speak of an unconstitutional state of affairs.

17:28

ABIA’s oral arguments - for unconstitutionality

ABIA (represented by Alan Rossi Silva) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute be declared unconstitutional.

17:27

AGU Support for constitutionality

The Advocate-General of the Union initiated his oral argument for the dismissal of ADI 5529. He maintains that there is no violation of the constitutional postulates indicated, besides that there would be a legal uncertainty with a retroactive decision of unconstitutionality. The decision could also make it possible to grant patents with a few years of effective protection. The comparative law provides for hypotheses in which the extension of deadlines is permissible as in countries such as the United States and Japan. Recently, the BRPTO started its office backlog reduction program, promising to shorten the order analysis period. With the success of such a program, the single article will become an exception to the rule. With the declaration of unconstitutionality, other sectors of technology outside pharmacy will suffer from the decision. Brazilian companies and teaching and research institutes, large patent depositors in Brazil will also have their requests affected by the decision. The TCU recommended the convenience and opportunity to revoke the aforementioned single paragraph. Currently, there is a bill that deals with the matter, aiming at the revocation by the Legislative Power. Regarding the pandemic, the INPI also used a decree to assist applicants who have requests that deal with substances that may act to fight the virus. The AGU concludes its support, requiring a declaration of constitutionality of the Sole Paragraph of Article 40 of the LPI and, in the alternative, requires that the eventual unconstitutionality maintains the patents already granted and that the products and processes that serve the fight are removed from the incidence of the Sole Paragraph during the pandemic. The support of the amicii curiae will now begin.

17:13

FPO’s oral arguments for unconstitutionality

According to the Chief Federal Prosecutor, Augusto Aras, the Sole Paragraph of Article 40 of the IP Statute establishes an indefinite patent term. As a result, this administrative inefficiency is trasferred to society. Moreover, this patent term extension is harmful considering the Covid-19 pandemic.

The Chief Federal Prosecutor finishes his oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute be declared unconstitutional. Next, the Chief Attorney General (André Mendonça) will present his oral arguments.

17:00

Justice Dias Toffoli finishes reading the summary

The Reporting Justice highlighted the arguments of the FPO that would establish unconstitutionality. He then addressed the arguments of the Federal Senate, the President of the Republic, and the AGU, all opining on the constitutionality of the provision and the consequent rejection of the ADI.

Finally, he highlighted the partial granting of the preliminary injunction and the admission of 15 amici curiae, a record in the Court.

16:50

Case Summary

Reporting-Justice Dias Toffoli begins to present the case summary, outlining the provision under challenge. The summary highlights the general aspects of the ADI and its object. The ADI was proposed by the FPO and the unconstitutionality of Art. 40, Sole Paragraph, on the grounds of Articles 5, header, and items XXXII and LXXVIII, 37, header and § 6, and 170, items IV and V, of the Constitution.

16:48

The hearing is resumed and ADI #5529 begins

Chief-Justice Luiz Fux presents the opening remarks for the hearing of ADI #5529. Reporting-Justice Dias Toffoli will read the case summary (a precis of the legal aspects involved in the discussion). The challenged provision is the Sole Paragraph of Article 40 of the Brazilian Patent Statute. The case was filed by the Federal Prosecutor’s Office in 2016.

Licks Attorneys represents four amici curiae, with oral arguments presented by four of our partners: Liliane Roriz, Otto Licks, Regis Arslanian and Eduardo Hallak.

16:00

Hearing Adjournment

The ruling of the first case on the STF’s agenda has just ended. The Justices unanimously admitted the complaint. Reporting-Justice Alexandre de Moraes conducted the hearing. ADI 5529 is the next case.

The hearing has been adjourned by the Chief-Justice.

14:16

Supreme Court hearing starts

This Wednesday’s (28) session was initiated by the Chief Justice, Luiz Fux.

The first case on the agenda is Brief 9456, regarding the complaint proposed by the Chief Federal Prosecutor, Augusto Aras, against Representative Daniel Silveira (PSL-RJ) for acts in violation of democratic, republican, and separation of powers principles.

ADI #5529 is the second case on the agenda.

April 22th, 2021

19:06

Hearing Postponed

The hearing of the first case on the STF’s agenda was suspended by the Chief-Justice, after Justice Marco Aurelio’s request for additional time to analyze the dockets. Chief-Justice Luiz Fux adjourned the hearing without determining new date for ADI #5529 hearing.

16:49

Hearing Resumed

Reporting-Justice Edson Fachin and Justice Gilmar Mendes have issued their opinion, and now the other Justices will issue their opinions on HC #193726.

16:11

Hearing Adjournment

Justice Gilmar Mendes has just finished issuing his opinion on HC #193726. The hearing has been adjourned by the Chief-Justice.

14:23

Supreme Court hearing starts

This Thursday’s (22) session was initiated by the Chief Justice, Luiz Fux.

The first case on the agenda is the continuation of the HC #193726 hearing, in which the Court will rule on the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing the former President Lula da Silva regarding Justice Edson Fachin’s decision that the 13th Federal Court of Curitiba lacked jurisdiction, sending the dockets of the criminal lawsuits related to the Guarujá triplex, the Atibaia site, headquarters and donations to the Federal Court of the Federal District by the Lula Institute, to the Federal Court of the Federal District. Next on the agenda is Brief 9456, regarding the complaint proposed by the Chief Federal Prosecutor, Augusto Aras, against Representative Daniel Silveira (PSL-RJ) for acts in violation of democratic, republican, and separation of powers principles.

ADI #5529 is the third case on the agenda

April 15th, 2021

18:52

Hearing Postponed

Due to the extended hearing of HC #193726 (not yet concluded), ADI #5529 was not heard in the session of April 15, 2021, as initially scheduled. Chief-Justice Luiz Fux adjourned the hearing without determining new date for the hearing of ADI #5529.

16:42

Hearing Resumed

Reporting-Justice Edson Fachin has issued his opinion, and now the other Justices will issue their opinions on HC #193726.

15:56

Hearing Adjournment

Reporting-Justice Edson Fachin has just ended issuing his opinion on the HC #193726. The hearing has been adjourned by the Chief-Justice and will be resumed in 30 minutes.

14:27

Supreme Court hearing starts

This Thursday’s (15) session was initiated by the Chief Justice, Luiz Fux. The first case on the agenda is the continuation of the HC #193,726 hearing, in which the Court will rule the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing Former President Lula da Silva, regarding Justice Edson Fachin’s decision that declared the 13th Federal Court of Curitiba lacked jurisdiction, sending the dockets of the criminal lawsuits related to the Guarujá triplex, the Atibaia site, headquarters and donations to the Federal Court of the Federal District of the Lula Institute, to the Federal Court of the Federal District.

ADI #5529 is the second case on the agenda.

April 14th, 2021

18:15

ADI #5529 - Hearing Postponed

The Chief-Justice has advised that the hearing of HC #193726 will continue until the end of this session (14). According to the Court’s Clerk, the hearing of ADI #5529 will be rescheduled soon.

17:05

Hearing Resumed

Reporting-Justice Edson Fachin will issue his opinion on HC #193726, followed by the other Justices.

16:10

Hearing Adjournment

Reporting-Justice Edson Fachin has just finished reading the case summary for HC #193726. The hearing has been adjourned by the Justices and will be resumed in 30 minutes.

15:24

HC #193726, second hearing on the agenda, starts

Chief-Justice Luiz Fux presents the opening remarks for the hearing of the second case on the agenda, HC #193726. ADI 5529 is the third case on the agenda.

The Court will rule on the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing the Former President Lula da Silva, regarding Justice Edson Fachin’s decision that declared the 13th Federal Court of Curitiba lacked jurisdiction, sending the dockets of the criminal lawsuits to the Federal Court of the Federal District. Reporting-Justice Edson Fachin will read the case’s summary.

15:22

End of MS #37760 ruling

The ruling of the first case on the STF’s agenda has just ended. By majority of votes the Justices upheld the preliminary injunction that instructed the Senate President to establish a Committee to investigate the Federal Government’s response to the Covid-19 pandemic.

Reporting-Justice Roberto Barroso conducted the hearing.

14:22

Supreme Court hearing starts

Chief-Justice Luiz Fux presented the opening remarks for the Supreme Court's hearing.

The first case to be ruled will be the Writ of Mandamus (MS) #37,760. The case discusses the establishment of a Committee to investigate the Federal Government’s response to Covid-19 pandemic. The second case to be ruled will be HC 193,726. The Court will rule the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing the Former President Lula da Silva, regarding Justice Edson Fachin’s decision that declared the lack of jurisdiction of the 13th Federal Court of Curitiba, sending the dockets of the criminal lawsuits to the Federal Court of Federal District.

ADI #5529 is the third case on the agenda.

April 7th, 2021

18:30

Hearing Postponed

Due to the extended hearing of ADPF 811 (not concluded yet), ADI 5529 was not heard in the session of April 7, 2021, as initially foreseen. As ADPF 811 refers to a Covid-19 case, it was given priority on the agenda. Chief-Justice Luiz Fux adjourned the hearing and in his closing remarks, he stressed that ADI 5529 (and other cases) will be rescheduled.

16:49

Hearing Resumed

ADPF #811 Reporting-Justice Gilmar Mendes will issue his opinion, followed by the other Justices.

16:09

Hearing Adjournment

ADPF 811 oral arguments were presented by the FPO, Attorney-General and the admitted amici curiae.

The hearing has been adjourned by the Justices and is to be resumed in 30 minutes.

14:23

Supreme Court hearing starts

Chief-Justice Luiz Fux presented the opening remarks for the Supreme Court's hearing. The first case to be ruled will be ADPF #811 (a bid before the Supreme Court original jurisdiction to declare that a given law violates a fundamental principle or guarantee of the Brazilian Constitution). The case challenges the constitutionality of Sao Paulo State's Decree that restricted religious activities due to the Covid-19 pandemic. ADI #5529 is the second case on the agenda.

16:09

Hearing Adjourned – Decision to be applied with ex nunc effect, except for the pharmaceutical sector and ongoing lawsuits.

By 8 votes to 3, the Brazilian Supreme Court decided to apply the ruling’s effects for the unconstitutionality of the Sole Paragraph of Article 40 of the Brazilian IP Statute.

With the dissenting opinions of Justices Edson Fachin, Rosa Weber, and Marco Aurelio, the proposal to apply the decision’s effects presented by Reporting Justice Dias Toffoli was approved.  Accordingly, the effects of the decision will not be attributed retroactively to patents already granted up until the date of publication of the hearing’s final decision.  The following exceptions will apply (i) patents that were already subject of a lawsuit because of the unconstitutionality of the Sole Paragraph of Article 40; (ii) patents granted under the term of the Sole Paragraph of Article 40, relating to pharmaceutical products and process, and equipment and materials for the use in healthcare.

ADI 5529’s hearing was adjourned

16:09

Justice Luiz Fux - Opinion for applying the decision’s effects

The Chief Justice seconded Justice Luís Roberto Barroso’s opinion, voting to apply the decision’s effects, imposing ex nunc effects without any limitation.

16:07

Justice Marco Aurélio – Opinion against applying the decision’s effects

Justice Marco Aurélio declared that it is not appropriate to apply the decision’s effects since the contested provision was unconstitutional since its conception. Applying a different decision would grant undue privileges to those who have benefited from an unconstitutional provision.

16:02

Justice Gilmar Mendes – Seconds Justice Toffoli’s opinion

Justice Gilmar Mendes fully seconded the Reporting Justice’s opinion.

15:59

Justice Ricardo Lewandowski – Seconds Justice Toffoli’s opinion

Justice Ricardo Lewandowski fully seconded the Reporting Justice’s opinion

15:56

Justice Cármen Lúcia – Seconds Justice Toffoli’s opinion

Justice Cármen Lúcia fully seconded the Reporting Justice’s opinion.

15:55

Justice Rosa Weber – Opinion against the applying the decision’s effects

Justice Rosa Weber seconded the vote of Justice Edson Fachin, stating that the requirements for the decision’s application are not present.

15:53

Justice Luís Roberto Barroso – Opinion for applying the effects of the decision

Justice Luís Roberto Barroso diverges slightly from the Reporting Justice, ruling for the application of the decision’s effects and applying ex nunc effects without any exception.

15:50

Justice Edson Fachin – Opinion against applying the effects of the decision

Justice Edson Fachin diverges from the Reporting Justice’s proposal, stating that the requirements for the decision’s applications are not present.

15:44

Justice Alexandre de Moraes – Seconds Justice Toffoli’s opinion

Justice Alexandre de Moraes affirmed the need to observe legal certainty and seconded the opinion of Reporting Justice Dias Toffoli.

15:41

Justice Nunes Marques – Seconds Justice Toffoli’s opinion

Justice Nunes Marques seconded the vote of the Reporting Justice and suggested changing the phrase “allowed patent” to “granted patent” so that it covers patents granted and not patents pending.

15:37

Justice Dias Toffoli’s opinion

The Reporting Justice proposes that unconstitutionality take effect from the publication of the decision of this hearing. Accordingly, the patents granted by the BRPTO should have a term period relating to the provisions of the header of Art. 40. This will also be the case for patent applications already filed before the BRPTO.

The same conditions apply for pharmaceutical products and processes since the partial granting of the interlocutory decision rendered on April 08, 2021.

He also proposes a cut-off in the decision’s applications effects, to attribute ex tunc effects to (i) lawsuits proposed until April 7, 2021; (ii) patents that on the date of the publication of the hearing are in force with a period defined by the Sole Paragraph of Art. 40, relating to products and processes related to the pharmaceutical area and equipment and materials for use in health.

For item (ii), he also referred to the 25 years of validity of the law to ensure the concrete effects already produced by contracts signed during the period in which the Sole Paragraph of Article 40 also regulated the patent term.

14:42

Supreme Court session restarts – ADI #5529 hearing is resumed

This Wednesday’s (12) session was initiated by the Chief Justice, Luiz Fux, and the hearing of ADI #5529 was resumed. The Justices will debate how the ruling of unconstitutionality shall be applied.

17:50

Hearing Adjourned

The Supreme Court has declared the Sole Paragraph of Article 40 of the IP Statute unconstitutional by a margin of 9 votes to 2.  Following the decision, the Justices initiated a discussion about possible ways to apply the decision over time.

After the Justices expressed divergent opinions, the Reporting Justice proposed postponing debate over the decision’s application to the next Supreme Court session. This proposition was accepted, and Chief Justice Luiz Fux adjourned today’s (6) session.

The ADI 5529 hearing will resume next Wednesday (12), at 2 PM, with the discussion focused on applying the judgment of unconstitutionality.

17:17

Discussion concerning a potentially unconstitutional state of affairs

Justice Gilmar Mendes understands that Justice Dias Toffoli's recommendations to the BRPTO would be mere digressions. Justice Dias Toffoli agrees, conceding that it was really an appeal to the Executive Branch.

According to Justice Carmen Lucia, it is a recommendation to the Executive Branch to comply with the principle of administrative efficiency. This would be, therefore, a foundation and not an integral part of the provision.

Justice Lewandowski, in turn, announces that he limited himself to deciding on unconstitutionality.

17:08

Justice Luiz Fux – an opinion for constitutionality

The Chief Justice, Luiz Fux, affirmed that the challenged provision does not violate the temporary privilege provided for in the Constitution since the latter provides for a minimum validity term to be effective when the patent is granted.

He argued that the Constitution provides for the principle of decision-making within a reasonable time and that the delay of the Public Administration cannot harm society. He concludes, therefore, that the BRPTO’s activity is not in accordance with this principle, and this burden cannot be transferred to society.

He further stated that the patent application filing creates a mere expectation of right and that retroactive effect does not protect the invention.

Regarding drug patents, the Justice stated that part of the delay is also ANVISA’s responsibility, in addition to BRPTO, to the detriment of the patent applicant.

He states that it is necessary to observe the consequences of the hearing’s decision. In this case, the declaration of unconstitutionality of the challenged provision will punish the patent holder harmed by the BRPTO’s delay. Furthermore, it will undermine the stability of the Brazilian patent system and the country’s economy.

The Justice concludes his opinion by affirming the constitutionality of the challenged provision.

16:54

Justice Luiz Fux begins to deliver his opinion

Justice Luiz Fux is the eleventh, and final Justice to render his opinion on the merits of ADI 5529

16:53

Justice Marco Aurélio Mello – an opinion for unconstitutionality

Justice Marco Aurélio delivers his opinion in favor of the unconstitutionality of the Sole Paragraph of Article 40

The patent term of the header of Art. 40 accords with the TRIPS agreement and the European Patent Convention concerning the monopoly of patents.

The header of Art. 40  offers 20 years of protection from the filing for invention patents and 15 years for utility models.  Art. 44 generates exclusivity and the possibility of exploration. The sole paragraph of Art. 40 creates insecurity since it does not conform with  Article 44. The temporary characteristic is in the interests of Brazilian society, and this precept is laid out in the constitution. It stipulates market freedom and competition that guarantees citizens better prices.

The Sole Paragraph conflicts with the header of its own Article own header since it creates a second initial term for protection.

However, Justice Marco Aurélio disagrees with the Reporting Justice regarding the BRPTO, ANVISA and the Ministry of Sciences determinations. Justice Marco Aurélio also believes that there is no room for modulating the effects of the decision of dismissal.

16:40

Justice Marco Aurélio Mello begins to deliver his opinion

Justice Marco Aurélio Mello is the tenth Justice to render his opinion on the merits of ADI 5529.

16:40

Justice Gilmar Mendes – an opinion for unconstitutionality

Justice Gilmar Mendes affirms that the right to industrial property is relevant and fundamental, especially in the context of a globalized economy. However, he argues that the constitutional provision cannot be undermined by administrative delay to the detriment of society. Accordingly, if the BRPTO proceeds with the analysis of patent applications within a reasonable period of time, the validity term provided in the general rule of Article 40 will be applied. Otherwise, the questioned provision will be applied.

He understands that the challenged provision is unconstitutional and references the TCU audit report to address the extension of patent terms for drugs, impacting the supply of generic drugs, with severe losses to the public treasury.

The Justice states that the BRPTO has addressed its backlog, making efforts to shorten the application of the deadline provided in the Sole Paragraph of Article 40 of the IP Statute to achieve its goal by the end of 2021.

However, he notes the patent granting administrative process includes a deadline for the applicant to request a technical examination. This feature is one of the reasons for the BRPTO's delay. Thus, he concludes that the applicant partially causes the BRPTO's delay and causes great damage to the economy.

It claims that the challenged provision was conceived as an exception but had its application extended because of administrative delays. Finally, he concluded by fully agreeing with the opinion of the Reporting Justice for the unconstitutionality of the Sole Paragraph of Article 40 of the IP Statute.

16:18

Justice Gilmar Mendes begins to deliver his opinion

Justice Gilmar Mendes is the ninth Justice to render his opinion on the merits of ADI 5529

16:17

Justice Ricardo Lewandowski – an opinion for unconstitutionality

Justice Ricardo Lewandowski begins by announcing that he will make his remarks brief only citing the University of São Paulo’s Law and Poverty Group study.

He points out that the average patent term exceeds the protection time in 30 jurisdictions. Second, the BRPTO has a comparable number of examiners as other jurisdictions, and that the device severely impacts the health system. Fourth, he argues that even highly innovative countries, such as the USA, have a stricter patent system. Fifth, no patent system in the BRICS countries maintains a patent term as in Brazil. Finally, of the ten patents with the longest validity terms in Brazil, nine are from the pharmaceutical industry.

So, he concludes that there is no doubt about the dysfunction of the device under question and that it excessively burdens consumers.

Thus, the Sole Paragraph violates Art. 5, XXIX, and Art. 170, contributing to a scenario of poverty and poor access to products.  He concludes that the right to health, provided by Article 196 of the Constitution, is vulnerable since there would be an excessive burden on the health system.

16:10

Justice Ricardo Lewandowski begins to deliver his opinion

Justice Ricardo Lewandowski is the eighth Justice to render his opinion on the merits of ADI 5529

16:09

Justice Cármen Lúcia – an opinion for unconstitutionality

The Justice affirms that, notwithstanding the 25-year validity of the Law, there is indeterminate validity term, in opposition to the temporary privilege the Constitution provides for.

The Justice also declares that the temporary privilege provided by the Constitution already denotes an exception admitted to the general regime that is intended to enable sharing of scientific knowledge for the benefit of society.

The Justice understands that the uncertainty and indetermination existing in the term provided for in the Sole Paragraph of Article 40 violates the constitution, and makes the provision unnecessary, inadequate and with effects that are opposed to the principles established in the Constitution.

Justice Cármen Lúcia concluded her opinion in favor of unconstitutionality, referring to the Reporting Justice’s opinion on the merits but diverging regarding the existence of an unconstitutional state of affairs.

16:00

Justice Cármen Lúcia begins to deliver her opinion

Justice Cármen Lúcia is the seventh Justice to render her opinion on the merits of ADI 5529.

15:59

Justice Rosa Weber – an opinion for unconstitutionality

Justice Rosa Weber delivers her opinion for the unconstitutionality of the Sole Paragraph of Article 40.

According to Justice Rosa Weber, the temporary privilege to be granted by inventors is only legitimate if it is aimed at the social benefit and technological development of the country.

The unpredictability of the challenged provision, allows for an indeterminate valid patent term, directly attacking the fundamental precept of intellectual property rights, which must be temporary.

The Sole Paragraph alters the patent's temporariness, by establishing an a quo term, marked by an uncertain future term, allowing patents with virtually undetermined terms. The challenged provision is unconstitutional and anti-systemic. The indeterminate term harms the Constitution by creating a disincentive for technological development in the country.

The Sole Paragraph does not conform to the constitutional provision, since it contradicts Article 5, XXIX, 78 and 170, iv of the Brazilian Constitution.

Justice Rosa Weber delivers an opinion for unconstitutionality but does not acknowledge there is also an unconstitutional state of affairs.

Finally, she concludes by fully agreeing with the opinion of the Justice Alexandre de Moraes for the unconstitutionality of the Sole Paragraph of Article 40 of the IP Statute.

15:50

Justice Rosa Weber begins to deliver her opinion

Justice Rosa Weber is the sixth Justice to render her opinion on the merits of ADI 5529.

15:27

Debate over the retroactivity of Article 44 of the IP Statute

After Justice Luís Roberto Barroso's opinion, a debate starts between Justices Marco Aurélio Mello, Dias Toffoli, Luiz Fux, Luís Roberto Barroso and Alexandre de Moraes regarding Article 44 of the IP Statute and the right to be indemnified retroactively once a patent is granted. They discuss whether the applicant has privilege between the date of filing and the granting of the patent.

15:26

Justice Luís Roberto Barroso - an opinion for constitutionality

According to Justice Luís Roberto Barroso the ADI deals with a minimum patent validity term.

He affirms there is a discussion about whose responsibility it should be for a failure of the public administration. Although he agrees with the purposes intended in the opinion of the Reporting Justice, he does not agree with the conclusion.

The Justice states that there are three important questions to be addressed: First, one must consider that the provision has been in effect for 25 years. Second, this provision only exists and only makes sense because the BRPTO takes more than 10 years to analyze a patent application. So, the BRPTO is responsible for the administrative delay. Third, it is necessary to know whether one is making a political decision or on a constitutional interpretation.

The Justice affirmed the complexity of the matter, and highlighted the opinions of Daniel Sarmento, Carlos Ari Sundfeld, Francisco Rezek, Ellen Gracie, and Sepúlveda Pertence. Justice Barroso recognized the importance of the patent system with a determined term for innovation and the encouragement of research.

He affirmed that in Brazil, the general regime is established by the header of Art. 40 of the IP Statute, which establishes the validity term from the date the application is filed. The Sole Paragraph, in turn, ensures that once the patent is granted, its owner is entitled to at least 10 years of exclusivity. For the Justice, the vital question is whether the right to exclusivity exists between the application and the granting of the patent.

Justice Barroso recognizes that Article 44 does not bring forward the patent owner’s right. Therefore, the Brazilian patent system does not ensure exclusivity from the application, but only with the granting of the patent.

The dominant interpretation of the STF is that, prior to the granting of the patent, what exists is expectation of right. In this sense, it cites the jurisprudence of lower courts that also recognize that, until the granting, there is no exclusivity. Thus, if there is no right to exclusivity, the inventor is not enjoying the privilege of protection.

Justice Barroso recognizes that the BRPTO has a bigger backlog than in the US and in the European Union. According to him, the provision is the product of a public service deficiency. Finally, he highlights that the BRPTO is reducing the analysis period and that, therefore, this provision will lose its reason for existing.

He argues that the right to health is preserved to the extent that institutions have incentives to develop innovative research. It is also a matter of public policy.

For the Justice, there is no violation of the Constitution for the following reasons: (i) there is no violation of temporariness or legal certainty, because the validity term is determined: 10 years after the patent is granted. If the BRPTO delays, the inventor cannot be held responsible; (ii) there is no violation of isonomy, because everyone who has their application delayed, therefore, in the same situation, will have the same validity term; (iii) there is no violation of free competition and consumer rights, because the Constitution itself weighs the granting of an exclusivity period. The Constitution itself understands that the patent is the legitimate institute; and (iv) it understands that the objective responsibility of the State is precisely to say that society bears losses for damages caused by the State.

Thus, the Justice believes that there is no violation of the Constitution and that, therefore, it is a matter reserved to the legislative branch.

The Justice concludes his opinion for constitutionality. He understands there is no discussion about the quality of the rule, only an analysis of compatibility with the Constitution.

14:44

Justice Luis Roberto Barroso begins delivering his opinion

Justice Luis Roberto Barroso is the fifth Justice to render his opinion on the merits of ADI 5529.

14:43

Justice Edson Fachin – an opinion for unconstitutionality

Justice Edson Fachin argued that protection of intellectual property cannot outweigh the supply of essential products to society. He stated that patent protection is equal before the law, which on the one hand protects the inventor, and on the other hand encourages new inventions, allows their development, and encourages the owner of the invention to continue innovating, or perfecting their invention. He reiterated, on the other hand, that it is an institution that has temporal limitations.

He stated that the general rule is that of freedom of market, and that the legal regime corresponding to industrial property rights is an exception, and that it should be examined from multiple perspective including societal interest.

He also mentioned that the uncertainty of the term of protection conflicts with fundamental rights, especially social rights, and the economic order, because citizens are potential beneficiaries of industrial innovation. The time and certainty concerning the period of validity must be preserved. The privileges of patent holders should be weighed against the right of collective use of inventions.

He claimed that the exercise of IP protections cannot cross the sphere of the use of that protection, to preserve competition. The elimination of competition is a blow against the very foundation of freedom, which must be enhanced.

He reiterated the importance of legal certainty as a fundamental right that constrains the indefinite period of the validity of patent protection.

Finally, he concluded by fully agreeing with the opinion of the Reporting Justice for the unconstitutionality of the sole paragraph of Article 40 of the IP Statute.

14:25

Justice Edson Fachin begins delivering his opinion

Justice Edson Fachin is the fourth Justice to render his opinion on the merits of ADI 5529

14:23

Supreme Court hearing restarts – ADI #5529 hearing is resumed

This Thursday’s (6) session was initiated by the Chief Justice, Luiz Fux, and the hearing of ADI #5529 was resumed. Justices Edson Fachin, Luis Roberto Barroso, Rosa Weber, Luiz Fux, Cármen Lúcia, Ricardo Lewandowski, Gilmar Mendes and Marco Aurélio Mello will all deliver their opinion.

17:59

Hearing Adjourned

After Justice Alexandre de Moraes’ delivered his opinion, Chief Justice Luiz Fux adjourned today's (5) session. The hearing of ADI 5529 will resume tomorrow, Thursday (6), at 2 PM.

17:58

Justice Alexandre de Moraes – an opinion for unconstitutionality

According to Justice Alexandre de Moraes, the National Congress does not have the competency to determine if it is – or it is not - a temporary natural right. Thus, the National Congress must establish the criteria for determining patent terms.

The Justice also stated that patent protection is essential to innovation. However, the Sole Paragraph results in an imbalance between patent protection and society’s right to take advantage of that patent. He argued that the patent right itself is not discussed. What is discussed is the term of protection that must respect the duality of protection/use by society.

The challenged provision did not establish the patent right from the application, but only in he future, when the patent is granted. Therefore, it allows for an indeterminate term of patent validity that depends on the administrative procedure duration.

The Justice stated that the challenged provision violates principles of efficiency, decision making within a reasonable time, and impartiality. The terms established by the header of Article 40 are similar to provisions employed in other jurisdictions and respect all international treaties signed by Brazil. On the other hand, by extending the term of validity, the law allows a monopoly since it prevents competitors from using the patented technology.

The Sole Paragraph accords a disproportionate weight to the term of validity since it would be up to the public administration to choose which patent application would be granted.

Justice Alexandre de Moraes concluded his opinion in favor of unconstitutionality, referring to the Reporting Justice’s opinion on the merits but diverging regarding the existence of an unconstitutional state of affairs. According to the Justice, it is not a matter of lack of protection for industrial property, but rather the lack of definition in the term established by the Sole Paragraph of Art. 40.

17:35

Justice Alexandre de Moraes begins to deliver his opinion

Justice Alexandre de Morais is the third Justice to render his opinion on the merits of ADI 5529.

17:34

Justice Nunes Marques – an opinion for unconstitutionality

Justice Nunes Marques began his opinion by emphasizing the importance of such a hearing for industrial property in Brazil.

He stated that property rights are guaranteed in Brazil through an exclusive temporary economic exploitation to secure the promotion of innovation. He understands, however, that there is an apparent conflict between the individual rights of the inventor and those of society in taking advantage of the invention.

Regarding the term of validity, Justice Nunes Marques referenced the general rule of the header of Art. 40 of the IP Statute, and supports the opinion of the Reporting Justice, in considering that the extension mechanisms (PTA and PTE) are exceptional.

He acknowledges that, although the time between the application and the patent grant an expectation of right exists, Article 44 of the IP Statute would already be sufficient to guarantee the rights of the inventor, as it is sufficient to constrain possible competitors and to ensure the inventors’ rights.

According to the Justice, the application of the Sole Paragraph makes the term both extended and undetermined, which does not fit a country that prioritizes a free market. He affirms that the Sole Paragraph guarantees an extension of the validity term since it depends on the administrative process within the BRPTO, which, in turn, is in agreement with the opinion delivered by the Reporting Justice, which is an unconstitutional state of affairs.

Thus, he understands that the provision is unconstitutional because it violates the due process of law (Art. 5, LIV) and the temporary privilege (Art. 5, XXIX), free competition (Art. 170, IV), and consumer protection (Art. 170, V).

The Justice referenced some drugs potentially helpful in combating the Covid-19 pandemic, such as Remdesivir, that would receive term extension under Article 40, Sole Paragraph of the IP Statute.

He also pointed out that, although the header of Article 40 is based on Article 33 of the TRIPS Agreement, the Sole Paragraph of Article 40 generates excessive protection.

Moreover, Justice Nunes Marques recognizes an unconstitutional state of affairs exists regarding the patent term in Brazil. Therefore, he concludes the Executive Branch must act to solve the BRPTO’s delay in examining patent applications.

17:03

Justice Nunes Marques begins to deliver his opinion

Justice Nunes Marques is the second Justice to render his opinion on the merits of ADI 5529.

17:02

Hearing Resumed

The sitting has been resumed and the other Justices will now issue their opinions, begining with Justice Nunes Marques.

16:15

Hearing Adjournment

After Justice Dias Toffoli finished issuing his opinion on ADI #5529, the hearing was adjourned by the Chief-Justice.

16:14

Justice Dias Toffoli – an opinion for unconstitutionality

Justice Dias Toffoli delivered his opinion in favor of declaring the Sole Paragraph of Article 40 unconstitutional. The Reporting Justice proposed adopting the decision of unconstitutionality over time, giving it an ex nunc effect, from the publication of this judgment. However, the decision would take ex tunc effect on patents granted with an extension of term related to pharmaceutical products and processes, equipment, and materials for use in health.

15:56

Justice Dias Toffoli’s opinion recognizes an “unconstitutional state of affairs” within the Brazilian patent system

Justice Dias Toffoli argues that there is an “unconstitutional state of affairs” concerning patent validity in Brazil.

Justice Toffoli lists four specific reasons: (i) the delay of the BRPTO in analyzing the patent applications; (ii) the “additional” term granted by the sole paragraph of Art. 40, Brazilian IP Statute; (iii) the longer patent term in Brazil compared to other jurisdictions; and (iv) the BRPTO’s inefficiency in solving its internal problems.

According to the Justice, all those reasons contribute to the  BRPTO’s administrative misconduct of patent applications.

15:45

According to Justice Dias Toffoli, the challenged provision violates the social function of intellectual property, free competition, and consumer protection

According to Justice Dias Toffoli, the challenged provision violates the social function of intellectual property (Article 5, item XXIX, article 170, item iii, Brazilian Constitution), free competition, and consumer protection.

The patent’s temporary nature allows it to exist in harmony with property’s social function. It protects the patentee’s rights over their invention for a given term, encouraging and rewarding investment in innovation. The whole of society benefits when a patent term expires and its subject matter enters the public domain.

According to Justice Dias Toffoli, the challenged Article impedes the activity of economic agents in industry for a period that may be unpredictably and indeterminately extended, allowing an industrial property to have an unreasonably long protection term. Therefore, it violates free competition and consumer protection.

15:25

Reporting Justice analyzes violation of legal certainty and Art. 5, XXIX of the Constitution

Justice Dias Toffoli claimed that the challenged provision violates legal certainty and Art. 5, XXIX of the Constitution by providing an indeterminate term of validity for patents.

He stated that the provision allows strategies by patentees to extend the term of their exclusive exploitation of products and subverts the logic contained in Article 5 XXXIX of the Constitution, which provides for a temporary privilege in recognition of societal interest and technological and economic development of the country.

He argued that the temporality provided for in the Constitution provides that patent protection should be granted according to clear rules and reasonable time not to grant undue competitive advantage.

Justice Dias Toffoli mentioned Article 44 of the IP Statute, which protects the ungranted patent application. He also claimed that its joint application with the Sole Paragraph of Article 40 means there is an extension of patent protection.

He concluded that the provision challenged allows an indefinite privilege and infringes individual and collective rights that arise from the extinction of the patent.

15:05

Reporting Justice analyzes the challenged provision’s impacts on the pharmaceutical sector

Justice Dias Toffoli’s opinion began with an analysis of the impacts of the Sole Paragraph of Article 40 of the IP Statute on the pharmaceutical sector and the potential for violating the right to health.

He mentioned AB2L’s brief (presented by Licks Attorneys) on the patent system’s importance for technology sectors other than the pharmaceutical sector.

Nevertheless, Justice Dias Toffoli argued that the enactment of the IP Statute particularly impacted the pharmaceutical sector, which is the one with the most prolonged delays at the BRPTO.

He also invoked the Federal Court of Accounts’ report, and a study filed to the dockets to prove that there is a significant impact from the extension of the term of the patents on the Universal Healthcare System (SUS), referring to the increased price of the drugs, and their effect on public spending and access for the populous.  He argued that this situation was even more detrimental in the context of coping with the Covid-19 pandemic.

Finally, he concluded by stating that the alleged extension of patent validity terms directly affects the country’s public health policies and affects citizens’ access to drugs, public policy, and health services.

14:40

Continuation of Justice Dias Toffoli’s opinion

The Reporting Justice’s opinion continues as he argues for the unconstitutionality of the challenged provision. The Justice has provided a comparative analysis of the effective, valid term of patents in Brazil to the international scenario.

The Justice states that Brazil tops the list of five countries with the longest effective term of patents, being the only developing country, which he argues would put Brazil at a considerable disadvantage in the international arena regarding access to drugs.

He also claims that foreign applicants are treated more generously than in their own country’s patent systems. Brazil would be isolated in the international community because it is the only country to provide patent term extension.

14:23

Supreme Court hearing starts – ADI #5529 hearing is resumed

This Wednesday’s (5) session was initiated by the Chief Justice, Luiz Fux, and the hearing of ADI #5529 is resumed. Reporting Justice, Dias Toffoli, will continue to read his opinion during today’s session, after which the other Justices shall issue their opinions.

18:07

Hearing Adjourned

Due to the length of Reporting Justice Dias Toffoli’s opinion, not yet finished, this Thursday’s hearing was adjourned by Chief Justice Luiz Fux. The hearing of ADI 5529 will be resumed next Wednesday (05/05), at 2 PM.

18:05

Continuation of Justice Dias Toffoli’s opinion

The reporting Justice’s opinion is in favor of the challenged provision being declared unconstitutional. The Justice invoked the backlog at the BRPTO, and the Sole Paragraph of Article 40 of the IP Statute, to argue that there is a violation of the principle of decision making within reasonable time (Art. 5, LXXVIII, CF) and the principle of efficiency of public administration (Art. 37, caput, CF).

He states that the challenged provision induces non-compliance with deadlines by the BRPTO, by mitigating the consequences of administrative delays and delaying behavior by applicants aiming to maximize the extension of the patent granting process.

He cites the BRPTO’s reply in the dockets to illustrate the high average wait time for granting patents in various technological sectors and to quantify the patents granted under the term of the challenged provision.

He also cites the Federal Board of Accountant’s report to illustrate the weakness and challenges to the scope of the BRPTO’s actions, addressing an insufficient number of human and technological resources. He goes on to point out that the report concludes by recommending the repeal of the contested provision.

In this regard, the Justice concludes there is a government consensus in favor of revoking the provision.

16:58

Hearing Resumed

The sitting has been resumed and Justice Dias Toffoli will continue issuing his opinion.

15:53

Hearing Adjournment

After Justice Dias Toffoli finished presenting the premises of his opinion on ADI #5529, the hearing was adjourned by the Chief-Justice.

15:47

Continuation of Justice Dias Toffoli’s opinion

Continuing to present his opinion, the Reporting Justice argued that the Sole Paragraph of Article 40 of the IP Statute was not adequately discussed in the enactment of the IP Statute and provides for a variable period of patent validity, which may exceed the period of validity provided for in the header of Article 40. He also claimed that the challenged provision aimed to compensate for the patent backlog and delays at the BRPTO, a phenomenon that existed for years without solution.

Next, the Reporting Justice addressed the international patent scenario, to affirm that there is no parallel to the Sole Paragraph of Article 40 of the IP Statute in the world and that the Sole Paragraph is a TRIPS-Plus provision. He also stated that the declaration of unconstitutionality of the challenged provision would not result in non-compliance with international agreements signed by Brazil, such as TRIPS.

15:22

Justice Toffoli's Opinion

Justice Toffoli began by outlining the premises of his opinion, exploring arguments related to the legal regime of patents, highlighting the aspect of temporariness and its significance for society and technological and economic development.

He also dealt with the process of patent granting by the BRPTO and concluded with the statement that patent protection does not start with the decision to grant the application; once the patent is granted, the protection provided is retroactive to the date the application was filed.

14:54

Justice Dias Toffoli begins to issue his opinion

Justice Dias Toffoli, Reporting Justice for ADI 5529, begins to issue his opinion, introducing the beginning of voting on ADI 5529.

14:33

Supreme Court hearing starts – ADI #5529 hearing is resumed

This Thursday’s (29) session was initiated by the Chief Justice, Luiz Fux and the hearing of ADI #5529 is resumed. During today’s session, the Justices shall issue their opinions, starting with Reporting Justice Dias Toffoli’s opinion.

18:12

Hearing Adjourned

After the amici curiae oral arguments, this Wednesday's hearing (28) was adjourned by the Chief-Justice Luiz Fux. ADI 5529 hearing will be resumed tomorrow (29), at 2 pm.

18:08

Croplife oral arguments - for constitutionality (Dr. Eduardo Hallak)

Croplife (represented by Dr. Eduardo Hallak) finalized its oral argument, requiring the declaration of the constitutionality of the Sole Paragraph of Art. 40 of the IP Statute.

With the end of the Sole Paragraph of Article 40, patents can be granted stillborn.

There is no extension of term in Brazilian law. What exists in Brazil are two different models concerning the term of the patent: 10 years from grant or 20 years from filing.

Comparative law shows examples of countries with an extension of terms, such as the United States and China.

The agribusiness area sees the focus of judgment on the pharmaceutical sector as problematic and indicates that the sector may suffer huge losses as a result.

18:02

ASIPI oral arguments – for constitutionality

ASIPI (represented by Gabriel Francisco Leonardos) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute be declared constitutional.

18:00

DPU oral arguments – for unconstututionality

DPU (represented by Gustavo Zortéa da Silva) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute be declared unconstitutional.

17:58

ABINEE oral arguments - for constitutionality (Dr. Regis Arslanian)

ABINEE (represented by Dr. Regis Arslanian) finalizes its oral argument, requesting the declaration of the constitutionality of the  Sole Paragraph of Art. 40 of the IP Statute.

A real campaign was created against the Sole Paragraph of Art. 40, but none of the drugs mentioned by the FPO would be used to combat the disease effectively.

Other technology sectors, such as telecommunications and the electricity sector, will lose thousands of patents. At this time, given the 5G auction, legal certainty in Brazil is of paramount importance.

With the advancement of the backlog end program, the BRPTO seeks to make the aforementioned paragraph a dead letter.

17:55

ANPEI oral arguments– for constitutionality

ANPEI (represented by Luiz Augusto Lopes Paulino) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute to be declared constitutional.

17:53

Pró-Genéricos and Farmabrasil oral arguments – for unconstitutionality

Pró-Genéricos (represented by  Marcus Vinícius Furtado Coelho) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared unconstitutional.

17:49

IBPI oral arguments – for unconstitutionality

IBPI (represented by Felipe Santa Cruz) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared unconstitutional.

17:47

AB2L's oral arguments - for constitucionality (Dr. Otto Banho Licks)

AB2L (represented by Dr.Otto Banho Licks) finalizes its oral argument, requesting the declaration of the constitutionality of the Sole Paragraph of Art. 40 of the IP Statute.

According to AB2L, there is no extension of the patent term. What there is, in fact, is an unconstitutional state of affairs in the BRPTO administrative process.

Each patent has only one term: either it will be the term provided forin the header of Art. 40 or it will be the period provided for in the Sole Paragraph of Art. 40 of the IP Statute.

Similar rules have been in force in Brazil for 187 years.

17:42

ABAPI oral arguments – for constitutionality

ABAPI (represented by Marcelo Martins de Andrade Goyanes) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute to be declared constitutional.

17:40

ABIFINA’s oral arguments - for unconstitutionality

ABIFINA (represented by Pedro Marcos Nunes Barbosa) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared unconstitutional.

17:38

ANDEF’s oral arguments – for constitutionality

ANDEF (represented by Rodrigo de Bittencourt Mudrovitsch) finishes its oral arguments, requesting the Sole Paragraph of Art. 40 of the IP Statute to be declared constitutional.

17:36

INTERFARMA’s oral arguments - for constitutionality

INTERFARMA (represented by Gustavo Freitas de Morais) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared constitutional.

17:34

ABPI’s oral arguments - for constitutionality

ABPI (represented by Luiz Henrique do Amaral Silva) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute to be declared constitutional.

17:32

AgroBio oral arguments - for constitutionality (Dr. Liliane Roriz)

AgroBio (represented by Dr. Liliane Roriz - Licks Attorneys) finalizes its oral argument, requesting the declaration of constitutionality of the Sole Paragraph of Art. 40 of the IP Statute.

Among the arguments presented, she noted that large companies left Brazil this year for several reasons, including legal uncertainty.

The US Supreme Court has already ruled on industrial property matters to indicate that changes in the matter must occur through the Legislative. According to Minister Sepulveda Pertence's opinion, the Sole Paragraph is a creative excess of the Legislative Power.

With the new efforts of the BRPTO, it is impossible to speak of an unconstitutional state of affairs.

17:28

ABIA’s oral arguments - for unconstitutionality

ABIA (represented by Alan Rossi Silva) finishes its oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute be declared unconstitutional.

17:27

AGU Support for constitutionality

The Advocate-General of the Union initiated his oral argument for the dismissal of ADI 5529. He maintains that there is no violation of the constitutional postulates indicated, besides that there would be a legal uncertainty with a retroactive decision of unconstitutionality. The decision could also make it possible to grant patents with a few years of effective protection. The comparative law provides for hypotheses in which the extension of deadlines is permissible as in countries such as the United States and Japan. Recently, the BRPTO started its office backlog reduction program, promising to shorten the order analysis period. With the success of such a program, the single article will become an exception to the rule. With the declaration of unconstitutionality, other sectors of technology outside pharmacy will suffer from the decision. Brazilian companies and teaching and research institutes, large patent depositors in Brazil will also have their requests affected by the decision. The TCU recommended the convenience and opportunity to revoke the aforementioned single paragraph. Currently, there is a bill that deals with the matter, aiming at the revocation by the Legislative Power. Regarding the pandemic, the INPI also used a decree to assist applicants who have requests that deal with substances that may act to fight the virus. The AGU concludes its support, requiring a declaration of constitutionality of the Sole Paragraph of Article 40 of the LPI and, in the alternative, requires that the eventual unconstitutionality maintains the patents already granted and that the products and processes that serve the fight are removed from the incidence of the Sole Paragraph during the pandemic. The support of the amicii curiae will now begin.

17:13

FPO’s oral arguments for unconstitutionality

According to the Chief Federal Prosecutor, Augusto Aras, the Sole Paragraph of Article 40 of the IP Statute establishes an indefinite patent term. As a result, this administrative inefficiency is trasferred to society. Moreover, this patent term extension is harmful considering the Covid-19 pandemic.

The Chief Federal Prosecutor finishes his oral arguments, requesting the Sole Paragraph of Article 40 of the IP Statute be declared unconstitutional. Next, the Chief Attorney General (André Mendonça) will present his oral arguments.

17:00

Justice Dias Toffoli finishes reading the summary

The Reporting Justice highlighted the arguments of the FPO that would establish unconstitutionality. He then addressed the arguments of the Federal Senate, the President of the Republic, and the AGU, all opining on the constitutionality of the provision and the consequent rejection of the ADI.

Finally, he highlighted the partial granting of the preliminary injunction and the admission of 15 amici curiae, a record in the Court.

16:50

Case Summary

Reporting-Justice Dias Toffoli begins to present the case summary, outlining the provision under challenge. The summary highlights the general aspects of the ADI and its object. The ADI was proposed by the FPO and the unconstitutionality of Art. 40, Sole Paragraph, on the grounds of Articles 5, header, and items XXXII and LXXVIII, 37, header and § 6, and 170, items IV and V, of the Constitution.

16:48

The hearing is resumed and ADI #5529 begins

Chief-Justice Luiz Fux presents the opening remarks for the hearing of ADI #5529. Reporting-Justice Dias Toffoli will read the case summary (a precis of the legal aspects involved in the discussion). The challenged provision is the Sole Paragraph of Article 40 of the Brazilian Patent Statute. The case was filed by the Federal Prosecutor’s Office in 2016.

Licks Attorneys represents four amici curiae, with oral arguments presented by four of our partners: Liliane Roriz, Otto Licks, Regis Arslanian and Eduardo Hallak.

16:00

Hearing Adjournment

The ruling of the first case on the STF’s agenda has just ended. The Justices unanimously admitted the complaint. Reporting-Justice Alexandre de Moraes conducted the hearing. ADI 5529 is the next case.

The hearing has been adjourned by the Chief-Justice.

14:16

Supreme Court hearing starts

This Wednesday’s (28) session was initiated by the Chief Justice, Luiz Fux.

The first case on the agenda is Brief 9456, regarding the complaint proposed by the Chief Federal Prosecutor, Augusto Aras, against Representative Daniel Silveira (PSL-RJ) for acts in violation of democratic, republican, and separation of powers principles.

ADI #5529 is the second case on the agenda.

19:06

Hearing Postponed

The hearing of the first case on the STF’s agenda was suspended by the Chief-Justice, after Justice Marco Aurelio’s request for additional time to analyze the dockets. Chief-Justice Luiz Fux adjourned the hearing without determining new date for ADI #5529 hearing.

16:49

Hearing Resumed

Reporting-Justice Edson Fachin and Justice Gilmar Mendes have issued their opinion, and now the other Justices will issue their opinions on HC #193726.

16:11

Hearing Adjournment

Justice Gilmar Mendes has just finished issuing his opinion on HC #193726. The hearing has been adjourned by the Chief-Justice.

14:23

Supreme Court hearing starts

This Thursday’s (22) session was initiated by the Chief Justice, Luiz Fux.

The first case on the agenda is the continuation of the HC #193726 hearing, in which the Court will rule on the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing the former President Lula da Silva regarding Justice Edson Fachin’s decision that the 13th Federal Court of Curitiba lacked jurisdiction, sending the dockets of the criminal lawsuits related to the Guarujá triplex, the Atibaia site, headquarters and donations to the Federal Court of the Federal District by the Lula Institute, to the Federal Court of the Federal District. Next on the agenda is Brief 9456, regarding the complaint proposed by the Chief Federal Prosecutor, Augusto Aras, against Representative Daniel Silveira (PSL-RJ) for acts in violation of democratic, republican, and separation of powers principles.

ADI #5529 is the third case on the agenda

18:52

Hearing Postponed

Due to the extended hearing of HC #193726 (not yet concluded), ADI #5529 was not heard in the session of April 15, 2021, as initially scheduled. Chief-Justice Luiz Fux adjourned the hearing without determining new date for the hearing of ADI #5529.

16:42

Hearing Resumed

Reporting-Justice Edson Fachin has issued his opinion, and now the other Justices will issue their opinions on HC #193726.

15:56

Hearing Adjournment

Reporting-Justice Edson Fachin has just ended issuing his opinion on the HC #193726. The hearing has been adjourned by the Chief-Justice and will be resumed in 30 minutes.

14:27

Supreme Court hearing starts

This Thursday’s (15) session was initiated by the Chief Justice, Luiz Fux. The first case on the agenda is the continuation of the HC #193,726 hearing, in which the Court will rule the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing Former President Lula da Silva, regarding Justice Edson Fachin’s decision that declared the 13th Federal Court of Curitiba lacked jurisdiction, sending the dockets of the criminal lawsuits related to the Guarujá triplex, the Atibaia site, headquarters and donations to the Federal Court of the Federal District of the Lula Institute, to the Federal Court of the Federal District.

ADI #5529 is the second case on the agenda.

18:15

ADI #5529 - Hearing Postponed

The Chief-Justice has advised that the hearing of HC #193726 will continue until the end of this session (14). According to the Court’s Clerk, the hearing of ADI #5529 will be rescheduled soon.

17:05

Hearing Resumed

Reporting-Justice Edson Fachin will issue his opinion on HC #193726, followed by the other Justices.

16:10

Hearing Adjournment

Reporting-Justice Edson Fachin has just finished reading the case summary for HC #193726. The hearing has been adjourned by the Justices and will be resumed in 30 minutes.

15:24

HC #193726, second hearing on the agenda, starts

Chief-Justice Luiz Fux presents the opening remarks for the hearing of the second case on the agenda, HC #193726. ADI 5529 is the third case on the agenda.

The Court will rule on the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing the Former President Lula da Silva, regarding Justice Edson Fachin’s decision that declared the 13th Federal Court of Curitiba lacked jurisdiction, sending the dockets of the criminal lawsuits to the Federal Court of the Federal District. Reporting-Justice Edson Fachin will read the case’s summary.

15:22

End of MS #37760 ruling

The ruling of the first case on the STF’s agenda has just ended. By majority of votes the Justices upheld the preliminary injunction that instructed the Senate President to establish a Committee to investigate the Federal Government’s response to the Covid-19 pandemic.

Reporting-Justice Roberto Barroso conducted the hearing.

14:22

Supreme Court hearing starts

Chief-Justice Luiz Fux presented the opening remarks for the Supreme Court's hearing.

The first case to be ruled will be the Writ of Mandamus (MS) #37,760. The case discusses the establishment of a Committee to investigate the Federal Government’s response to Covid-19 pandemic. The second case to be ruled will be HC 193,726. The Court will rule the en banc appeals filed by the Federal Prosecutor’s Office (FPO) and by the attorneys representing the Former President Lula da Silva, regarding Justice Edson Fachin’s decision that declared the lack of jurisdiction of the 13th Federal Court of Curitiba, sending the dockets of the criminal lawsuits to the Federal Court of Federal District.

ADI #5529 is the third case on the agenda.

18:30

Hearing Postponed

Due to the extended hearing of ADPF 811 (not concluded yet), ADI 5529 was not heard in the session of April 7, 2021, as initially foreseen. As ADPF 811 refers to a Covid-19 case, it was given priority on the agenda. Chief-Justice Luiz Fux adjourned the hearing and in his closing remarks, he stressed that ADI 5529 (and other cases) will be rescheduled.

16:49

Hearing Resumed

ADPF #811 Reporting-Justice Gilmar Mendes will issue his opinion, followed by the other Justices.

16:09

Hearing Adjournment

ADPF 811 oral arguments were presented by the FPO, Attorney-General and the admitted amici curiae.

The hearing has been adjourned by the Justices and is to be resumed in 30 minutes.

14:23

Supreme Court hearing starts

Chief-Justice Luiz Fux presented the opening remarks for the Supreme Court's hearing. The first case to be ruled will be ADPF #811 (a bid before the Supreme Court original jurisdiction to declare that a given law violates a fundamental principle or guarantee of the Brazilian Constitution). The case challenges the constitutionality of Sao Paulo State's Decree that restricted religious activities due to the Covid-19 pandemic. ADI #5529 is the second case on the agenda.