The INPI´s Attorney General Office filed, on the 11th of September, 34 lawsuits in the Federal Court of Rio de Janeiro, to correct the term of the 247 agrochemicals and medicines patents used in the treatment of diseases like cancer, AIDS, erectile dysfunction, migraine, candidiasis, multiple sclerosis, rheumatoid arthritis and psoriasis, among others.
The lawsuits result from the INPI´s positioning on a complex issue: the term of the patents in the chemical and pharmaceutical filed in Brazil between January 1995 and May 1997. In practice, the outcome of these actions will result in the correction of validity term of these patents, which may be reduced by up to six years.
Consequently, the correction of these terms will allow that generics enter into the Brazilian market, in some cases, with the reduction of drug prices, the exemption of public health policies and a greater access from the population to treatments. The impact will also be great for agrochemicals, since they can integrate the food chain.
The question taken by the INPI to the judiciary arises from the following case: as of January 1995, Brazil adopted the Agreement on Trade-Related Aspects of Intellectual Property Rights Related Rights (TRIPS). In this agreement, it was intended to protect all technological fields, including in the chemical / pharmaceutical areas, which the Brazilian Industrial Property Law did not allowed until then.
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It was established that could be filed with the INPI patent applications in this area from 1995, which would be analyzed as soon as the country created a new Industrial Property Law, which occurred through Law No. 9279, which entered into force in May 1997. This waiting system for patent analysis was known as “mailbox “.
The cited law provides that these patents should be granted for a period limited to 20 years, counted from their respective filing dates. Many patents have been filed at this time, but even for the time necessary to implement the new law, it took some time for these patentes to be analyzed. However, the INPI applied another principle foreseen in the law, and granted these patents for a period of 10 years counted from the grant.
Now, such a procedure has been revised. This occurred because the Attorney General’s INPI Office drafted the opinion that confirmed the understanding about the incorrectness of the terms of these patents granted by INPI leading to the decision to file the lawsuits for correction of the 20 years term from the filing date.