The term of patent granted by the mailbox system is 20 years from the filing date of the patent application by the interested party. The understanding, set by the Brazilian Superior Court of Justice in process: REsp 1,721,711, was reaffirmed by the 3rd Panel of the court.
The patent term in mailbox drug patents is 20 years
With the decision, the board denied a request from a pharmaceutical laboratory to recognize the ten-year protection period for a series of drug patents, but from the date of the concessions, which took place between 2005 and 2012. These patents filing were made in Brazil between 1995 and 1997.
“In the case of medicines, delaying the entry into the public domain of inventions means delaying access to the generic market, leading to prolongation of higher prices, which contributes to the burden of public health policies and makes it difficult for population’s access to essential treatments, “said Nancy Andrighi, the Judge Rapporteur, of the laboratory’s appeal.
The mailbox system, regulated by Law 9,279 / 1996 – the Industrial Property Law (LPI) -, consisted of a transitional mechanism adopted to protect patent applications for pharmaceutical and agrochemical products, whose legal protection resulted from the adoption by Brazil of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), 1995.
[huge_it_slider id=”15”]Because of adherence to the international convention and as a way of not harming patent applicants until the adequacy of Brazilian law, patent applications remained in the mailbox of the National Institute of Industrial Property (INPI), pending examination until new rules began to apply in 1996.
The Judge Rapporteur of the appeal, Minister Nancy Andrighi, stated that the privilege granted by invention patents, as provided for in article 40 of the Industrial Property Law (LPI), lasts for 20 years from the filing date. However, according to the sole paragraph of the same article, the deadline cannot be less than ten years from the respective granting – except in the event that the INPI is prevented from examining the request by court or force majeure.
The vital ingredient in both these medicines in order to run their love-life successfully. viagra sample india You must be levitra purchase online very vigilant in determining who you trust when you order online. Furthermore, these strap ons are durable and can be used for treatment or prevention of benign prostatic symptoms, erectile dysfunction and purchasing viagra nightfall. This drug contains Tadalafil free samples of viagra as the active constituent in 100 mg concentration.
In the case of patents exceptionally filed by the mailbox system, said the minister, the LPI, in its final and transitional provisions (Article 229, sole paragraph), established express rule ensuring unlimited protection only within 20 years from the filing date.
“Therefore, according to the legal provision, the privilege granted to the applicant guarantees him protection from the grant date by the competent body (BPTO) up to 20 years, counted from the filing day that it was filed,” said the Judge rapporteur.
According to the minister, the application of this period stems from the express redemption made by rule that specifically deals with mailbox patents. The Judge rapporteur recalled that the sole paragraph of Article 229 does not even refer generally to the content of Article 40 or to the deadlines of Article 40, but expressly to the deadline provided for in the caput of Article 40 (20 years counted from the filing date).
According to Nancy Andrighi, INPI did not comply with the deadline set by article 229-B of Law 9,279 / 1996 for decision on mailbox patent applications (12/31/2004). However, the rapporteur considered that the breach of a rule would not lead to the violation of other, otherwise would cause damage to the whole society.
“This is because the ultimate goal of a patent system is not solely to protect invention but to promote inventive activity and technological advancement with a view to meeting the interests of the collective. The invention owner must obviously enjoy this temporary privilege, in order to obtain remuneration commensurate with the costs of his work and the success of his invention, but the aim is broader: to promote the development of the country in the scientific, technological, economic and social spheres, “concluded the minister. by denying the laboratory appeal.
With information from the press office of the STJ.
Case: REsp 1,840,910