Journal of Intellectual Property Law & Practice, Volume 16, Issue 2, February 2021, Pages 146–149, https://doi.org/10.1093/jiplp/jpaa195
Extract
Introduction: direct plea of unconstitutionality #5529 (ADI #5529)
The Brazilian Supreme Court (STF) is going to analyse patent term provisions for the first time in this century. The case filed by an association representing generic pharmaceutical companies alleges unconstitutionality of the provision establishing a minimum patent protection for patent owners. The issue before the Court is whether patent owners can enjoy a minimum patent term of 10 years from grant. The challenged provision is found in the Brazilian Industrial Property Law (LPI, Article 40, sole paragraph):
Article 40. A utility patent will have a term of 20 (twenty) years and a utility model patent term of 15 (fifteen) years, counted from the filing date.
Sole ¶ The term will not be less than 10 (ten) years for utility patents and 7 (seven) years for utility model patents, counted from grant, except when the BRPTO is barred from proceeding with the substantive examination of the application, due to proven pending judicial decision or for reasons of “force majeure”.
• What changed: STF. Journal of Intellectual Property Law & Practice , Volume 16, Issue 2, February 2021, Pages 146–149, https://doi.org/10.1093/jiplp/jpaa195 Extract Introduction:. • Executive impact: Implication for executives: reassess life sciences & IP posture, especially decision ownership and evidence standards across Brazil operations. .• Where to go deep: portfolio/prosecution strategy and FTO reviews. Context: The challenged provision is found in the Brazilian Industrial Property Law (LPI, Article 40, sole paragraph): Article 40.• Decisions to make: whether to adjust positions proactively to reduce disputes.• Next steps: run a focused gap assessment; update playbooks/policies; and circulate a 1‑page executive memo (options, tradeoffs, timeline, residual risk, owner).
This section gives quick answers to the most common questions about this insight. What changed, why it matters, and the practical next steps. If your situation needs tailored advice, contact the RNA Law team.
Q: What changed, and why is it not “business as usual”?A: STF reframes expectations in life sciences & IP. Journal of Intellectual Property Law & Practice , Volume 16, Issue 2, February 2021, Pages 146–149, https://doi.org/10.1093/jiplp/jpaa195 Extract Introduction:. Q: Which parts of the business will feel this first?A: Typically: the operational teams executing the rule (approvals/filings, product/service design, contracting) and the lines that must prove compliance under scrutiny. . Q: What is the main enforcement / dispute risk executives should manage?A: Misalignment between policy and execution plus weak documentation are the usual failure modes. The challenged provision is found in the Brazilian Industrial Property Law (LPI, Article 40, sole paragraph): Article 40. Set ownership, define evidence standards, and ensure consistency across subsidiaries. Q: What should we do in the next 30–90 days?A: Commission a targeted gap assessment; prioritize high-impact processes; update playbooks and controls; and issue an executive memo with options, costs, timing, and residual risk. Align Legal, Compliance, Operations, and business owners on one plan. Q: How does this affect multinational governance and cross-border consistency?A: Use the update to harmonize group minimum standards with local add-ons (Brazil-specific). Define escalation thresholds and avoid country-by-country divergence that creates inconsistent risk postures and undermines defenses.
