The Supreme Court has postponed the judgement of the constitutionality of article 40, sole paragraph, of the Patent Statute

The Supreme Court has postponed the judgement of the constitutionality of article 40, sole paragraph, of the Patent Statute, but the reporting justice, Justice Dias Toffoli, partially granted a preliminary injunction to suspend the validity of the provision regarding new applications for pharmaceutical products and processes and medical equipment or materials.

The long-awaited judgement of Unconstitutionality Complaint No. 5529, which will decide the constitutionality of sole paragraph of article 40 of the Patent Statute, which was scheduled to begin on April 07, 2021, was postponed by the Supreme Court, due to the judgement of another constitutional case regarding the COVID-19 pandemic.

 However, since the Attorney General’s Office, the plaintiff, had requested a preliminary injunction to, provisionally, suspend the validity of the sole paragraph of article 40, which establishes the minimum validity term of 10 years for patents, due to eventual delays in the BPTO’s analysis of patent applications, reporting Justice Dias Toffoli partially granted the requested injunction to suspend the validity of the provision in connection to patents relating to pharmaceutical products and processes and medical equipment or materials until the final merit judgement of the complaint by the court.

 In practice, Justice Toffoli’s decision prevents the granting of new patents in the pharmaceutical areas according to the disposition of the sole paragraph of article 40, due to the mention by Justice Toffoli of the prospective effects of the injunction. Justice Toffoli’s decision is provisional and shall be voted by his peers in the Supreme Court, which may maintain the decision or overrule it.

 Finally, among the reasons of the referred decision, Justice Toffoli issued his opinion regarding the merit of Complaint nº 5529 and, in his view, the sole paragraph of article 40, which establishes the minimum validity term of 10 years for patents, violates the Federal Constitution and, thus, cannot be maintained in Brazilian Legislation. The judgment of the merit of the case, however, is far from ending, since the Court’s 10 remaining justices are yet to issue their opinions on the matter and the prediction is that the trial will resume on April 14.