Government studies changes in patent law

The Brazilian patent legislation, which is place since 1996 and is object of court disputes, is about to change. An inter-ministerial task force coordinated by the Chief of Staff's Office is likely to propose a bill to Congress with two significant alterations in the Industrial Property Law.

The possibility of saving billions in the budget of the public health system, or SUS, with shorter-term drug patents, is one argument that advocates of the reform use. Yet groups in the government fear the law changes may create hurdles to innovation and protection of new technologies, especially in telecommunications and agriculture.

Because of an unconstitutionality action being reviewed by the Federal Supreme Court (STF) and recommendations made by the Federal Court of Accounts (TCU), the government set up a group to study two points of law 9,279 that are being disputed.

One is the prior approval by the Brazilian Health Regulatory Agency (Anvisa) in the granting of patents for pharmaceutical products and processes.

The other is one part of the legislation (sole paragraph of article 40) stating that patents granted more than ten years after the initial filing gain a "bonus" in the duration of exclusivity. It was a way of compensating the excessive delay of the National Institute of Industrial Property (INPI) in the analysis of these applications.

TCU auditors presented "conservative" estimates in a report that these additional protections cost R$906 million more to the Ministry of Health between 2010 and 2019 in the purchase of only 11 drugs. A Federal University of Rio de Janeiro (UFRJ) study indicates the possibility of saving as much as R$3.8 billion with drugs in the SUS in a four-year period if there are changes in article 40.

The committee created by the government is headed by diplomat André Odenbreit, special aide to the chief of staff, and has representatives of five other ministries: Economy, Foreign Affairs, Health, Science and Technology and Tourism (which includes the Secretariat of Trademark and Intellectual Property of the former Culture Ministry).

There have been five meetings so far. One person who participated in the technical discussions says the "spirit of consensus" prevailed for a final proposal, despite specific divergences and dissidence from the economic team - the special secretariats of Productivity, Job and Competitiveness and of Foreign Trade and International Affairs were represented. The executive secretaries of the...

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