Brazilian patent law : change in patent term
The Brazilian Supreme Court finalized on May 12, 2021 the judgment of the Constitutional Challenge regarding the patent minimum duration of 10 years from the grant, as provided for under the sole paragraph of article 40 of the Brazilian IP law.
The Supreme Court ruled on May 6, 2021, by majority that the provision for minimum term of patents of 10 years from the grant was unconstitutional and should be void and null.
However, in view of the high number of patents already granted under this minimum term, the Supreme Court had to review whether all those patents should have their terms reduced to 20 years from filing of the applications.
The Supreme Court decided that all patents already granted with the additional term will be preserved and kept valid and in force, with two exceptions:
I. patents the terms of which are already being challenged through lawsuits filed until April 7, 2021; and/or
II. patents granted with the term of 10 years from grant for pharmaceutical products and processes and health related products and materials, such as medical devices.
For those patents the term will be reduced to 20 years from the filing of the respective applications.
From the date of publication of this ruling onwards, the Brazilian PTO will grant patents under the general rule of duration of 20 years from the filing of the applications.