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Patent term adjustments will no longer be acceptable in Brazil

  • 26 May 2021
  • New legislation

The Brazilian Supreme Court decided on May 6th that the sole paragraph of art. 40 of the Industrial Property law is unconstitutional. Therefore, patent term adjustments will no longer be acceptable in Brazil.

As you may know, in Brazil the term of validity of a patent of invention is of 20 years counted from the filing date thereof and for utility models the term is of 15 years counted from the filing date thereof. However, according to the Brazilian IP Law, there is a patent term adjustment that is automatically granted to compensate the examination delay of the Brazilian PTO. The minimum validity term of a patent is of 10 years counted from the issuance date for inventions and of 7 years counted from the issuance date for utility models. Such minimum validity terms will be revoked as soon as the judgement finishes.

The judgment will resume next week, on May 12th, when the judges will decide if the withdrawal of the minimum validity term from the IP law applies to all technologies as well as the effects on time of such decision, either ex-nunc or ex-tunc or both, depending on the technology.

We will keep you informed about the developments. In case of any questions, please feel free to contact us on brj@clarkemodet.com.br.

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Patent term adjustments will no longer be acceptable in BrazilPatent term adjustments will no longer be acceptable in Brazil