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Supreme Court declares 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

Posted on: 7/5/2021

Patents

The Brazilian Industrial Property Law (article 40, sole paragraph) established that the term of validity will be of either 20 years for patents of invention (and 15 years for utility model patents), counted from the filing date, or 10 years for patents of invention (and 7 years for utility model patents), counted from the date of grant, whichever is longer. This legal provision was intended to assure that the patentee enjoyed a term of at least 10 years of validity of the patent of invention (and 7 years for utility model patents) as of the grant thereof, thus, compensating somehow for the long delays in the prosecution of the respective application.

Yesterday, the Supreme Federal Court decided for the unconstitutionality of such legal provision.

The Supreme Federal Court Judges will discuss next week the legal effects of this decision, namely, how they will affect the term of the patents previously granted by the Brazilian PTO and whether they will encompass patents all technological fields besides those related to pharmaceutical products and processes and equipment and/or materials for use in health.


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