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This is an update to our posts on March 15, 2021 and March 10, 2021.  As readers are aware, the Brazilian Supreme Court was scheduled to decide the constitutional challenge involving Article 40 of the Brazilian Intellectual Property (IP) Statute (ADI 5529) yesterday, on April 7, 2021.  Unfortunately, the patent term hearing did not take place because the agenda of the Supreme Court was delayed due to discussion in another case.  A new hearing is scheduled for April 14, 2021.  

After the Supreme Court announced the new hearing date, Justice Toffoli partially granted the preliminary injunction (PI) requested by the Federal Prosecutor’s Office (FPO) to suspend the effect of the 10-year patent term for pharmaceuticals effective immediately until the Supreme Court’s final ruling.  Justice Toffoli’s decision does not mention TRIPS Article 27.1 (non-discrimination) or its impact on the case – which is a relevant omission, as the PI is restricted to one sector (pharmaceuticals). Justice Toffoli’s decision is heavily anti-patent and confusing regarding its impact. While the PI is not retroactive by law, the opinion does provide for the possibility of retroactive effect for pharmaceutical patents if there is a pending invalidity challenge based on constitutional grounds related to ADI 5529.

BRICS & Beyond is preparing a detailed analysis on Justice Toffoli’s decision and will post more information on this decision soon.

This post was written by Lisa Mueller and by Rob Rodrigues and Ana Luiza from Licks Attorneys

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