The term of patents in Brazil

The Industrial Property Law (Law No. 9279 of 1996) establishes in Art. 40, sole paragraph, that if the application for a patent for an invention takes more than 10 years to be analysed, then the patent will be valid for 10 years from the date it is granted in Brazil.

The same applies to the utility model patent, where the term may not be less than seven years from the date of being granted in Brazil.

Since the validity of a patent is counted from its international filing, this period sometimes in Brazil exceeds the limit of 20 years of validity for invention patents and 15 years for utility model patents.

This is due to the Brazilian Patent Office (INPI)’s delay in analysing the patents.

Today, the INPI states a patent takes an average of 5.1 years to be analysed. However, in the past, this time was much longer. Some specific cases took more than 20 years from the international filing that are still awaiting analysis.

Therefore, the sole paragraph of Art. 40 of the Industrial Property Law ensures that if this analysis takes more than 10 years, an application for an invention patent in Brazil will still have at least 10 years of protection.

However, for some specific fields of application, such as pharmaceutical industries producing generic medicines and certain telecommunications technologies, non-holders of patents can only produce the drug or specific technology when the drug or technology patent expires.

The direct action of unconstitutionality No. 5529, filed by the Attorney General’s Office, which assesses the constitutionality of the sole paragraph of Art. 40 of the Industrial Property Law, was initially be analysed on 26 May 2021, but this analysis was brought forward to 7 Apri.

In an order published on 12 March 2021, the rapporteur of the action, Minister Dias Toffoli, asked the INPI for clarification on the numbers of requests in this situation, among other issues, as soon as possible, giving the INPI a deadline of 5 days to reply.