INTELLECTUAL PROPERTY NEWSLETTER | The Supreme Court declared unconstitutional the sole paragraph of art. 40 of the Brazilian IP Law on the minimum validity term of patents

7 . May . 2021 |

In judgment of ADI 5529 yesterday (May 6th, 2021) the Brazilian Federal Supreme Court declared unconstitutional, by 9 votes to 2, the sole paragraph of art. 40 of the Brazilian IP Law (Law 9.279/1996), which establishes the minimum term of validity of patents in case of delay in the examination of the application by the Brazilian PTO.

The normal term of validity provided for in article 40 of the Brazilian IP Law is of 20 years from the filing date of the patent application, whereas the patent granted under the terms of the sole paragraph of said article has a minimum validity term of 10 years from grant for patents of invention (ending up with more than 20 years).

The modulation of the effects (if prospective or retroactive), however, has not yet been decided. On May 12, 2021 the court justices should discuss and decide from when the effects of the decision will be applied, a crucial point, especially for holders of the patents in force and granted based on the legal provision considered unconstitutional.

Click here to learn more about this matter.

For further information, contact:

Ana Paula Celidonio

Isabella Katz Migliori

IP Team

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