Possible granting of second-use patents
Last October 17, the Committee for Economic Development, Industry and Foreign Trade of the Brazilian Congress rejected Bill No. 2511/07, which sought to prohibit the patenting of inventions derived from an already known pharmaceutical product, also known as “second-use patents” or “Swiss type” patents.
The Commission rejected the project because the prohibition would eventually be a discourage to research and development of new drugs by national pharmaceutical industries. Also, according to a Commission representative, the prohibition would be contrary to the constitutional aims of protection of inventions, particularly in the pharmaceutical area.
A second-medical-use invention is based on the discovery of a new therapeutic activity from already known chemical compounds, to obtain a medicament for different purposes from those existing in the state of art.
An example of second-use is a drug originally invented to relieve symptoms of fever which is later come out to be effective in controlling blood pressure. In this case, a patent would be granted for the new pharmaceutical use (controllig blood pressure), which would be independent of the patent granted for the already known use.
As we informed previously, in principle Brazilian Law covers the patenting of products and processes according to the provisions of TRIPS Agreement. However, this resent desicion is consequence of the Brazilian PTO acknowledging the existence of case-law under which use-patents have become part of the local legal practice and, as a result, applications claiming uses may be acceptable for prosecution and granting.
In view of the rejection and dropping of Bill No. 2511/07, Brazil now adheres to other Latin American countries, such as Chile, Dominican Rep., El Salvador, Mexico and Panama, who also accept second-use patents.