[Ip-health] Threat of automatic granting of patent applications in Brazil

Pauline Londeix pauline.londeix at gmail.com
Wed Dec 6 09:40:37 PST 2017


I agree with Leena.

 It's terrible news, and if there is anything we can do from Europe...

Pauline



Le 6 déc. 2017 4:49 PM, "leena menghaney" <leenamenghaney at gmail.com> a
écrit :

> Dear Pedro,
>
> This is a terrible crisis in Brazil. To dismantle the patent examination
> system is a major setback to the global movement for patent law reform. I
> hope colleagues and comrades across the movement will respond in
> solidarity.
>
> Is there anything we can do from Indian civil society? Please give
> direction.
>
> Leena
>
> On 6 December 2017 at 13:55, Pedro Villardi <pedro at abiaids.org.br> wrote:
>
> > Hi all,
> >
> > From Brazil we wanted to share this very grave news. The Brazilian
> Ministry
> > of Industry, Foreign Trade and Services and the National Institute of
> > Industrial Property – INPI (Brazilian PTO), recently submitted a proposal
> > for a simplified procedure for granting patent applications. This is not
> in
> > place yet, but likely will be early next year.
> >
> > The main articles of such norm can be found below. These articles  rule
> the
> > submission of applications to the simplified procedure.
> >
> > *Art. 1* This [NORM] is about the simplified procedure of granting
> patent
> > applications.
> >
> > Single paragraph. The simplified procedure shall not apply to the
> > certificate of addition, divisional applications and applications for
> > pharmaceutical products and processes.
> >
> > *Art. 2* The admission of the patent application in the simplified
> > procedure shall be notified in the Intellectual Property Magazine – RPI
> > (Acronym in Portuguese) when the following conditions are met:
> >
> > I - Protocol for the filing of the patent application or application for
> > entry into national phase carried out up until the date of publication of
> > this [NORM];
> >
> > II - Applications published or with a request to early publication until
> > thirty days of the date of publication of this [NORM];
> >
> > III - Request to examine the patent application until 30 days of the date
> > of publication of this [NORM];
> >
> > IV - Payment on time of the annual compensations;
> >
> > V - No publication of a technical examination opinion, pursuant to art.
> 35
> > of Law No. 9,279 of 1996.
> >
> > *Art. 3*. From the publication of admission of the patent application in
> > the simplified procedure, a ninety-day period for the publication of its
> > approval shall begin.
> >
> > *Art. 4* The patent application  subject to patent opposition procedures
> by
> > third parties within the period stipulated
> > <https://www.linguee.com.br/ingles-portugues/traducao/
> > within+the+period+stipulated.html>
> > by the Art. 3 of this norm or on a date prior to the publication of
> > admission shall be excluded from the simplified procedure.
> >
> > Single paragraph. The patent application shall be excluded from the
> > simplified procedure by request of the applicant itself within the term
> of
> > art. 3º.
> >
> >
> >
> >
> >
> > This proposal has been defended by its proponents as an "extraordinary
> > measure" that promises to eliminate the backlog of the Brazilian patent
> > office, corresponding to 231 thousand applications pending analysis. In
> > practice, the measure consists in granting the pending applications
> > without analyzing its consistency with the patentability requirements.
> >
> > In Brazil, only 14% of the pending patent applications correspond to
> > residents in the country, while non-residents represent 86%[1] <#_ftn1>.
> > This means that any measure of adjustment of the patent system is under
> > great pressure from those who are the largest users, foreign companies.
> In
> > this way, this norm contemplates mainly the interests of transnational
> > companies, without guarantee that it will lead to social and industrial
> > development for the country. The measure benefits specially poor quality
> > patent applications.
> >
> > Regarding legal issues, the new norm violates the Brazilian
> Constitutional
> > System and the Patent Law, because it disregards the requirements,
> > conditions and legal procedures indispensable to the analysis of patent
> > applications, as defined by Law 9.279 / 96, which regulates the patent
> > system in Brazil. If the conditions for granting the patent are not fully
> > satisfied, it cannot be granted without being unlawful. In addition, it
> > should be noted that Law 9.279 / 96 cannot be disregarded by a normative
> > instrument that is not a Law in the formal sense - approved by the
> > Legislative Branch (however, following this criticism, there are rumors
> of
> > a movement to create a legislative act or a presidential decree to
> overcome
> > this obstacle).
> >
> > In addition, there is already a great flow of lawsuits challenging the
> > Brazilian patent office decisions. In this already complex context, the
> > proposal is that patents granted under the simplified procedure, which
> may
> > affect third parties, may be subject to administrative and judicial
> review.
> > Therefore, it is expected not only possible conflicts, but a flood of
> > judicial challenges, transferring to the judiciary and interested parties
> > the Herculean task of filtering out which patents and which legal actions
> > are meritorious.
> >
> > Not only will sham litigation practices gain new ground, but also
> excessive
> > patenting practices may gain new impetus, such as the strategy known as
> > *evergreening*, which consists of the indefinite extension of monopolies
> > through a succession of applications on small changes in already existing
> > products. With the new measure, the intellectual property regime is even
> > more exposed to this type of practice, legitimizing the request of
> > secondary patents as a way to extend the monopoly of products beyond the
> > twenty years established by Law.
> >
> > It should also be noted that although the proposed legislation "excludes"
> > the pharmaceutical area, there are many other areas related to the
> > productive chain of the pharmaceutical sector that are included. It is
> also
> > public and well-known that the pharmaceutical area does not enjoy
> > immunities when as regards to “exceptional measures”. It is enough to
> > remember another measure that enabled granting of patents without
> analysis
> > of merit: the revalidation patents, the so-called "pipeline". The
> pipeline
> > patents in Brazil included the pharmaceutical sector in its scope, which
> > implied significant losses to the Brazilian Health System, making it
> > difficult for millions of people to access medicines.
> >
> > It is undeniable that the Brazilian patent office presents structural
> > difficulties to fulfill its institutional and social purpose. Thousands
> of
> > patent applications are filed per year in Brazil and the number of
> > examiners is not sufficient to meet the demand. It is also true that the
> > backlog problem is an important obstacle to the patent system in Brazil.
> > However, it is not reasonable to further weaken this system through
> blindly
> >  accelerating the granting of patents, without taking into account the
> > constitutional criteria of promoting the social interest, technological
> and
> > economic development of the country.
> >
> > In addition, considering the current number of examiners and the number
> of
> > applications that are filed annually, it is possible that even if the
> > measure is able to end the Backlog as promised by its proponents, it will
> > not be effective in solving the  backlog problem in the long term. On the
> > contrary, it is a palliative measure that does not face the root of the
> > problem.
> >
> > This measure will weaken the capacity and autonomy of the examination
> > carried out in Brazil and will encourage an abusive use of the patent
> > system, proliferating applications that do not contain any relevant and
> > substantive innovation for society, which serve only to block competition
> > and scientific and technological progress. A reasonable solution for the
> > fragility of Brazil’s patent examination system must seek the possibility
> > of  a sufficient and qualified public-administrative functional framework
> > and specially with the necessary conditions to verify compliance with the
> > legal norms established in the country. To opt for a solution in default
> of
> > the legal rigor needed to grant patents, allowing the automatic granting
> of
> > such applications can not be the solution at all. As many stakeholders
> > already mentioned, at the same time South Africa is moving towards a
> > substantive examination system, Brazil is going in the opposite
> direction,
> > dismantling its capacity to promote a quality and rigorous exam.
> >
> >
> >
> >
> >
> > ------------------------------
> >
> > [1] <#_ftnref1> INPI, Resumo estatístico da situação dos pedidos de
> > patentes, disponível em:
> > http://www.inpi.gov.br/menu-servicos/patente/consultas-publicas
> > _______________________________________________
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> >
>
>
>
> --
> Leena Menghaney
> Mobile: 9811365412
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