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Last night, several generic companies in Brazil filed lawsuits against patents held by pharmaceutical companies.  Specifically, 46 identical lawsuits were filed 46 targeting 79 patents. The cases challenge the patent term awarded by the Brazilian Patent and Trademark Office (BRPTO) based on Article 40, sole paragraph, of the Intellectual Property Statute.  As readers are aware, Article 40 was held unconstitutional by Brazil’s Supreme Court last week; however, as mentioned in our post of May 7, 2021, a decision on whether the ruling should apply retroactively to reach patents already granted by the BRPTO prior to the preliminary injunction granted by Justice Toffoli (see our post of April 8, 2021) was postponed until today, May 12, 2021.

The 11 Supreme Court Justices are scheduled to discuss and decide later this afternoon whether to apply Justice Toffoli’s proposal to retroactively apply the decision of unconstitutionality to reduce the terms of patents: (i) directed to pharmaceuticals (including products and medical devices); and/or (ii) that have been challenged based on the unconstitutionality of Article 40, sole paragraph, prior to the publication of the Supreme Court’s final decision (which would also include non-pharma patents).

Some of the impacted companies:  Amgen (2 lawsuits); GlaxoSmithKline (2 lawsuits); Novartis (4 lawsuits); Eli Lilly and Boehringer Ingelheim (3 lawsuits each); Regeneron Pharmaceuticals (2 lawsuits); Astrazeneca (2 lawsuits); Cipla; Daiichi Sankyo; Incyte; Les Laboires Servier; Novo Nordisk (2 lawsuits); Onyx Therapeutics; Pfizer (3 lawsuits); Pharmacyclics; Takeda and Shire 

Each lawsuit challenges patents from the portfolio of specific products, such as:  Repatha® (evolocumab), Nucala® (mepolizumab), Entyvio® (vedolizumab), Xvega® (denosumab), Brilinta® (ticagrelor), Xarelto® (rivaroxaban), Vyvanse® (lisdexamfetamine), Xalkori® (crizotinib), Latuda® (lurasidone), Ibrance® (palbociclib)

Please continue to watch BRICS & Beyond for continued updates on the Supreme Court decision and the Brazilian landscape post-constitutional challenge.

This post was written by Lisa Mueller and by Rob Rodrigues and Brenno Telles from Licks Attorneys 

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