A Inconstitucionalidade do Artigo 40, Parágrafo Único, da Lei de Propriedade Industrial sob uma Perspectiva Comparada
64 Pages Posted: 12 Feb 2021
Date Written: December 8, 2020
The research discusses the constitutional aspects of Article 40, sole paragraph, of the Brazilian Industrial Property Law ("LPI", from its acronym in Portuguese). This institute establishes a minimum protection period for invention patents, and the Brazilian Supreme Court is now examining its constitutionality in Direct Action for the Declaration of Unconstitutionality no. 5529.
The research aims to understand where this Brazilian provision is within the international landscape. For this purpose, the study compares Brazilian law and data on granting pharmaceutical and non-pharmaceutical invention patents for the period between 2010 and 2019 to intellectual property laws and patent granting in twenty-nine jurisdictions.
In a nutshell, the research shows no match for Article 40, sole paragraph, of LPI in any other jurisdiction. Although a minority of the nations studied have mechanisms for additional patent protection, these are restricted to specific cases (e.g., for pharmaceutical products) and are guided by a diverse legal-economic rationale of reduced application, which is subject to certain exceptions and limitations. Therefore, one cannot correctly compare these provisions to the Brazilian one.
These conclusions are corroborated by the empirical research results, which show that the minimum term institute is responsible for distortions that extend the duration of patents registered in Brazil beyond the deadlines established by the TRIPS Agreement or by the practices adopted by the international community.
Finally, the research provides the Brazilian Supreme Court factual and robust material to decide for the unconstitutionality of Article 40, sole paragraph, of LPI. This decision could be an adequate measure to stimulate Brazilian scientific-technological production, amplify access to healthcare by Brazilians, and, consequently, promote the country's socio-economic development.
Keywords: patent; drug, pharmaceutical, intellectual property, comparative law
JEL Classification: K11, K20, K21, K32, O34, O38
Suggested Citation: Suggested Citation