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TWN
Info Service on WTO and Trade Issues (May21/12)
Brazil: Court rules against patent extension provision Penang, 10 May (Lean Ka-Min) - A provision in Brazil's intellectual property law that allows for unlimited patent term extensions has been declared unconstitutional by the Brazilian Supreme Court, in a decision that could enhance the availability of affordable medicines to patients in need. The court's 9-2 majority ruling, handed down on 6 May, pertained to Article 40 of the Brazilian Industrial Property Law. This clause sets a minimum 10-year protection period after a patent is granted, in addition to the term of 20 years from the date the patent application was filed. As the examination of patent applications in Brazil usually takes more than 10 years, Article 40 effectively extends - potentially indefinitely - the patent term beyond the 20 years provided for under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to which Brazil is a member. (The patent duration under TRIPS is 20 years from the date of filing of a patent application.) According to a study by the Law and Poverty Group (GDP), a research centre at the University of Sao Paulo Law School, such an extension clause is "a legislative innovation without any relevant international equivalent". The lengthy patent terms resulting from Article 40 have been most pronounced in the pharmaceutical sector. The GDP study found that nine of the 10 patents with the longest terms in Brazil are for pharmaceutical products, with protection periods exceeding 30 years. Many of the medicines with extended patent terms - and hence extended duration of monopoly enjoyed by the patent holder - are sold in Brazil at prices several times higher than international reference prices, the medical humanitarian organisation Medecins Sans Frontieres (MSF) has revealed. These medicines include raltegravir for HIV treatment, recombinant liraglutide for diabetes, and tocilizumab for rheumatoid arthritis. As a result of the Supreme Court decision, patents in Brazil will from now on last only for 20 years from the filing of the patent application. The court will meet on 12 May to decide whether its ruling will have retroactive effect on existing patents. In a statement issued before the 6 May judgement, MSF had said that a ruling of unconstitutionality would "serve as a progressive step by the judicial system in Brazil towards safeguarding access to affordable medicines for all, preventing abusive patenting practices that keep the prices of lifesaving medicines artificially high for long periods of time". The ruling could also deliver a boost to the fight against COVID-19 in Brazil, one of the countries worst hit by the novel coronavirus. According to the Affordable Medicines Movement, removal of patent term extensions would lower costs for a medicine used when intubating patients and a type of blood thinner deployed in treating the disease. Furthermore, the Supreme Court decision has the potential to spur more health-friendly intellectual property legislation in other countries. Speaking ahead of the ruling, Kate Stegeman, MSF's Access Campaign Advocacy Coordinator in South Africa, had said: "As the South African government has yet to finalise essential and overdue draft amendments to our Patents Act that presently lacks adequate public health safeguards, this decision in Brazil could serve as a strong impetus for many of us also calling for patent law reforms. Removal of this harmful measure will be a major victory for people's access to affordable medicines in South Africa and around the world."
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