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Supreme Court Suspends the Rule that Determines Minimum Expiry Date for Patents on Medicines and Pharmaceutical Products
Minister Dias Toffoli, of the Federal Supreme Court (STF), suspended today (7) the validity of a rule that extends patents on medicines and pharmaceutical products. In a preliminary decision, he suspended Article 40, sole paragraph, of the Industrial Property Law (Law 9.279 / 1996).
The decision, which will be submitted to a Plenary referendum, was taken in Direct Unconstitutionality Action (ADI) 5529 and exclusively covers patents related to pharmaceutical products and processes and equipment or materials for use in health, as to the extension of the term patent in the event of delay in the analysis of the application by the National Institute of Industrial Property (INPI).
The Attorney General’s Office (PGR), the plaintiff of the lawsuit, argues that the questioned device allows the opening of an indefinite period for the validity of invention patents and utility models, which would violate the principle of patent protection temporariness, provided for in item XXIX of article 5 of the Federal Constitution.
With the health crisis caused by the pandemic, the Attorney General filed a preliminary injunction requesting that the rule has a direct impact on the fundamental right to health, since, while the patents of large laboratories have not expired, the pharmaceutical industry will be prevented from producing generic drugs against the new coronavirus and its current and future variants. He pointed out that there were drugs whose patent would have expired, had the rule not been questioned.
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Brazil Expands Current PPH
By Mariano Municoy. Partner, Lawyer, and Head of Moeller’s Regional Legal Department.
Since 2016, the Brazilian PTO (INPI) has been implementing several bilateral Patent Prosecution Highway (PPH) programs with different PTOs in order to accelerate substantive examination of patent applications while reducing the large still existing backlog.
The first round of bilateral agreements consisted of a phase I pilot program and among the partnering PTOs were those of the United States of America, Austria, the European Patent Office, Japan, China, Denmark, the United Kingdom, South Korea, Sweden, and Singapore.
On December 21st, 2020 INPI issued Ordinance #404/2020 to bring Phase II of those PPH pilot projects forward from December 1, 2022, to January 1, 2021, which signals the success of the system and its expected growing use.
According to this regulation, Phase II is going to last until December 31st, 2024, will have a limit of 600 applications per year (instead of the 400 of Phase I) and each applicant may request up to 1 (one) case per week (instead of one per month of Phase I).
One very important difference between Phase I and Phase II is that under Phase II the Office of Earlier Examination (OEE) and the Office of First Filing (OFF) must not be the same.
So now a patent application filed with any OFF having a bilateral PPH can be expedited based on the examination performed by any other OEE partner on a PPH where there is a patent of the same family examined with positive result.
The claimed subject matter of the application object of the request must not be broader than that of the patent examined by the OEE nor should it include prohibited or not patentable subject matter according to Brazilian Law and regulations.
As under Phase I, a chart comparing both sets of claims must be filed with the request but under Phase II it is also possible to just file a declaration confirming that the new set of claims in the Brazilian application are a translation of the claims as accepted by the OEE
In order to speed up the examination, the corresponding official fees must be paid, and, unlike under Phase I, decisions issued by INPI refusing to include an application can not be appealed.
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New Appellation Of Origin in Brazil (DO)
By Moeller IP Brazil.
The Brazilian PTO published today (May 05th), in the Official Bulletin (RPI) nº 2574, the grant of the geographical indication (IG) “Campanha Gaúcha”, in the type of appellation of origin (DO), for fine white, rosé wines, red and sparkling wines. This is the seventh IG in the state of Rio Grande do Sul for the wine segment.
From now on, all wine producers who are within the demarcated region and follow the rules contained in the regulations for use – called the Technical Specifications Booklet – will be able to use IG in their products. This was granted on behalf of the Association of Fine Wine Producers of the Gaúcha Campaign.
The territorial delimitation of 44,365 km² covers municipalities or districts of: Aceguá, Barra do Quaraí, Candiota, Hulha Negra, Itaqui, Quaraí, Rosário do Sul, Santana do Livramento, Uruguaiana, Alegrete, Bagé, Piraí, José Otávio, Dom Pedrito, Ibaré , Maçambará, Bororé, Encruzilhada, Torquato Severo and Joca Tavares.
The first IG recognized in Brazil was the DO “Região dos Vinhos Verdes” for wines, granted on August 10, 1999. Currently, there are 77 records at the INPI, of which 56 are national (IP) indications and 21 are DO (12 national and nine foreign).
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INPI Brazil | New Extension of Deadlines in Brazil by Ordinance No. 166/2020
By Carlos Cavalcanti. Lawyer, Managing Partner at Moeller IP Brazil.
Brazilian PTO published this Tuesday (04/28), Ordinance No. 166/2020, which extends until May 15, 2020, the suspension of deadlines referred to in Ordinance No. 120 and 160/2020, due to administrative measures to prevent infection and the spread of COVID-19.
- The Ordinance applies to all processes pending at Brazilian PTO, regardless of their nature. Therefore, deadlines are suspended for all cases.
- The Ordinance also implies the interruption of the counting of the deadlines that are in progress, which will flow again for the time remaining at the end of the suspension period. In other words, the term will be counted from where it left off.
- The terms that start in this period will start counting after the end of the suspension.
- The use of term suspension is optional and the user can petition at the INPI, through the online systems, if they prefer.
We will continue to provide legal updates as needed and requested, to our clients and colleagues worldwide, and wish you to stay healthy and safe.
Please do not hesitate to contact us at any time with any doubt or questions you may have.
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INPI Brazil | Brazilian PTO Extends Suspension of Terms Determined by Ordinance No. 120 / 2020
By Carlos Cavalcanti. Lawyer, Managing Partner at Moeller IP Brazil.
Brazilian PTO published this Tuesday (04/14), Ordinance No. 161/2020, which extends until April 30, 2020, the suspension of deadlines referred to in Ordinance No. 120 / 2020, due to administrative measures to prevent infection and the spread of COVID-19.Temporary work on teleworking for employees and employees of the Institute was also extended until the same date.
– The Ordinance applies to all processes pending at Brazilian PTO, regardless of their nature. Therefore, deadlines are suspended for all cases.
– The Ordinance also implies the interruption of the counting of the deadlines that are in progress, which will flow again for the time remaining at the end of the suspension period. In other words, the term will be counted from where it left off.
– The terms that start in this period will start counting after the end of the suspension.
– The use of term suspension is optional and the user can petition at the INPI, through the online systems, if they prefer.
Source: http://www.inpi.gov.br/
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INPI Brazil | On COVID-19 Priority Examination for Pharmaceutical Products and Processes
The Official Bulletin 2570 from April 07, 2020, published the right to request priority examination for pharmaceutical products and processes and equipment and/or materials for use in health for the diagnosis, prophylaxis, and treatment of Covid-19.
The transcript of the Resolution issued follows below:
Art. 1 BRPTO Resolution No. 239, from June 4, 2019, published in RPI No. 2528, July 18, 2019, becomes effective with the following changes:
“Art. 12-A. The patent process in which one the object is related to pharmaceutical products and processes and equipment and/or materials for use in health for the diagnosis, prophylaxis and treatment of Covid-19 will have priority in the processing.
- 1 The request for priority processing must be filed until June 30, 2021, by the applicant, attorney or interested third party, individual or legal entity, and must contain a clarification indicating the relationship of the matter of the process with the diagnosis, prophylaxis of the population and/or treatment of patients at Covid-19.
- 2 The Directorate of Patents, Computer Programs and Topographies of Integrated Circuits (DIRPA) may regulate the submission and examination process and even temporarily suspend, in whole or in part according to the effectiveness of the service provision, the receipt of requests of the caput of the article for patent processes.
Source: http://www.inpi.gov.br/
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INPI Brazil Suspends Deadlines Until 04/14
By Moeller IP.
INPI Brazin suspends deadlines due to Coronavirus
In view of the coronavirus epidemic and, consequently, of the restrictions caused to users, the INPI Brazil informs that all deadlines are suspended from 03/16 to 04/14, returning to flow on 04/15.
In addition, face-to-face services are suspended for an indefinite period. All questions from users must be addressed through the Contact Us system.
You can access the RPI statement on March 17.
INPI Brazil will continue to monitor the situation and take other measures if necessary.
Source: http://www.inpi.gov.br/noticias/inpi-suspende-prazos-ate-o-dia-14-04/view
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New Agreements Between the Brazilian INPI and the Danish PTO
By Vivianne Cardoso Banasiak. Client Relationship Manager.
Agreements between DKPTO and INPI
On 7th October 2019, the Danish Patent and Trademark Office, DKPTO and the Brazilian National Institute of Industrial Property, INPI have signed three agreements whose main objective is to increase and develop the innovation activities, including the generation and trading of Industrial Property assets, such as patents. Agencies working in scientific and technological research in both countries are expected to get closer.
The agreements, which are the result of good collaboration between the Danish and the Brazilian authorities, allow the two countries to join efforts in crucial economic areas such as services, health care, clinical testing, clean energy, and even food and agribusiness.
Agreements
Research, Development, and Innovation (RDI)
The first agreement aims to encourage and develop cooperation between companies from both countries in Research, Development, and Innovation (RDI). Potential participants are already being evaluated in the various regions of Brazil. One of the expected results of this work is the increase in the number of patents and other industrial property assets under co-ownership, i.e. involving two or more partners.
New Patent Prosecution Highway (PPH)
The purpose of second agreement is to improve/expand the process of streamlining the analysis of Brazilian patents in Denmark and vice versa, allowing applicants in Denmark and Brazil to obtain corresponding patents faster and more efficiently. This will be made possible through a new Patent Prosecution Highway (PPH) agreement, broader than the current one (http://www.inpi.gov.br/menu-servicos/patente/projeto-piloto-pph). The existing PPH with Denmark, which began on 01st September 2018 and lasts for two years, includes areas within machinery, environment, and energy. According to the Foreign Ministry and the Brazilian authorities, the next agreement will be expanded to include new areas.
IP Marketplace
The third agreement involves the next stage of an Industrial Property asset: commercialization. It refers to the IP Marketplace, an online trading platform for these assets, working as a display window with trademarks, patents, and industrial designs. Today, around 6,000 users across 157 countries are registered. Participation is free of cost and the platform is open to companies, universities, and the public at large.
IP Marketplace is also a collaboration platform for inventors across the world, who can become acquainted with innovations in their fields of knowledge and meet researchers. According to the president of INPI, Cláudio Vilar Furtado, Brazilian trademarks and patents may be seen by other inventors, who may be interested in trading these assets, bringing positive effects on the innovation system in Brazil and, finally, on the economy as a whole.
Sources:
http://agenciabrasil.ebc.com.br
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EPO and INPI Brazil to further enhance their co-operation
By José Santacroce, Partner, and Head of Patent Department
EPO and INPI co-operation
The European Patent Office (EPO) and the National Institute of Industrial Property of Brazil (INPI) have agreed to work towards enhancing their co-operation. EPO President António Campinos and Claudio Vilar Furtado, President of INPI, signed on 22 July 2019 a Joint Statement in this direction following a bi-lateral consultation that formed part of a series of meetings between the EPO and IP offices from the Community of Portuguese Language Countries. They also signed an agreement renewing the INPI’s access to EPOQUE Net, the EPO’s dedicated patent searching tool that contains more than 1.3 billion database entries.
Memorandum of Understanding
In their Joint Statement, the two Heads of Office agreed to work together towards a Memorandum of Understanding (MoU) establishing a pilot project aimed at strengthening the INPI’s capacity for searching and examining patent applications.
President Campinos underlined the importance of co-operation with INPI: “I am pleased to sign this Joint Statement today. As traditionally, Brazil has been an important co-operation partner for the EPO in Latin America. The INPI has great expertise in the patent grant procedure, and with today’s signatures we are paving the way to a closer relationship between our offices, benefitting businesses from both regions.”
President Furtado echoed these sentiments: “The INPI welcomes with enthusiasm the enhancement of the partnership with the EPO. This is an essential step in the modernization of the Institute, a pillar of Brazilian development, to make it a world-class protagonist in industrial property”.
The co-operation between the EPO and Brazil’s INPI started in 2000 with a first technical co-operation project between both offices. This was followed by a number of bilateral agreements enhancing the co-operation to include granting the INPI access to EPOQUE Net (in 2005) and, in 2017, a joint Patent Prosecution Highway (PPH) pilot programme, that allows patent applicants to request accelerated treatment of their applications pending at the EPO and the INPI.
The EPO’s Strategic Plan recognizes that co-operation within Europe and with partners outside of the EPO’s member states has been a contributing factor to economic success. Therefore, as envisioned through several initiatives laid out in the Plan, the Office will continue to reinforce its network through agreements such as the ones concluded between the EPO and INPI.
Source: www.epo.org
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Comunicado INPI Brazil
Con el objetivo de mejorar su infraestructura de Tecnología de la Información (TI) y reducir costos operativos, el INPI realizará la transferencia de todos los equipos de su Datacenter a otra ubicación. En razón de este procedimiento, será necesario interrumpir el funcionamiento del Instituto y de sus sistemas entre las 0h del día 05 de junio y las 23h59 del día 10 de junio de 2019.
La interrupción en el funcionamiento de todos los sistemas del INPI y, en consecuencia, de su Portal en Internet, es esencial para garantizar la copia de seguridad y la seguridad de todos los activos que serán transportados a la nueva ubicación.
El INPI asegura que no habrá perjuicios a los usuarios y todos los plazos vencidos en el período serán devueltos del 11 al 14 de junio de 2019. El Instituto mantendrá al público informado por el Portal, antes y después, y por sus Redes Sociales durante todo el procedimiento.
La transferencia de Datacenter a un nuevo espacio, más adecuado para la infraestructura de TI del Instituto, seguirá los estándares internacionales de seguridad de la información, climatización, prevención de incendios y suministro de energía eléctrica, con aumento de disponibilidad, estabilidad y confiabilidad. Los costos operativos del centro de datos se reducirá en un 53%, de R$ 799 mil a R $ 372 mil por año, considerando contrato de soporte y mantenimiento, energía eléctrica y agua.
Source: http://www.inpi.gov.br/
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