In September, the Brazilian patent and trademark office filed 33 lawsuits seeking to invalidate more than 200 patents owned by about 120 foreign companies, covering important products sold in the country.
The cases are akin to a US-style declaratory judgment complaint. Despite having the statutory authority (Article 56 of the patent statute) to seek the invalidation of a patent it has issued, the Brazilian patent and trademark office (INPI) has never exercised that right since its creation in 1970.
The justification given by the government is a mistake made by the INPI when granting the patents that afforded a patent term of 10 years from grant, instead of 20 years from the filing date. Brazilian patent law statutorily provides both terms, but the INPI alleges that patents filed between January 1, 1995, and May 14, 1997, known as ‘mailbox’ patents, should not be entitled to 10 years from grant.
(The term mailbox refers to the requirement of the TRIPS Agreement applying to WTO members which do not yet provide product patent protection for pharmaceuticals and for agricultural chemicals. Since January 1, 1995, when the WTO agreements entered into force, these countries have to establish a means by which applications of patents for these products can be filed.)
INPI, TRIPS, mailbox patents, patent rights