Brazilian Supreme Court decides on the extension of the decision that determined the sole paragraph of article 40 of the IP Law to be unconstitutional

Posted on: 13/5/2021

IP Law

After the Supreme Court declared unconstitutional the provision of the Brazilian IP Law that guarantees the minimum term of validity of 10 years for patents of invention, and 7 years for utility model patents, counted from the grant, the Ministers have ruled that the legal effects of this decision will not affect the term of the patents previously granted by the Brazilian PTO, excepting those related to pharmaceutical products and processes and equipment and/or materials for use in the health field, being preserved any concrete effects that already occurred as a result of the extension of said patents.

It must be noted that patents under that rule will not automatically enter the public domain because the Brazilian Industrial Property Law (article 40) establishes that the term of validity will be 20 years for patents of invention (and 15 years for utility model patents), counted from the filing date, which must be observed.

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