[Ip-health] Pharmalot: Patient groups say Brazilian proposal to change patent reviews would favor pharma

Thiru Balasubramaniam thiru at keionline.org
Thu Jan 9 00:19:35 PST 2020


Patient groups say Brazilian proposal to change patent reviews would favor

JANUARY 8, 2020

A recent proposal by the Brazilian government to effectively privatize its
patent office has alarmed patient advocates, who fear such a move would
make it easier for the pharmaceutical industry to maintain monopolies on
medicines and, consequently, higher prices in one of the world’s largest

In its notice, the Ministry of Economy suggested merging the National
Institute of Industrial Property, or INPI, which oversees patent reviews,
with another government agency to form a new public-private sector entity
called the Brazilian Agency for Development and Industrial Property, or
ABDPI. The goal is to create “greater efficiencies,” according to the
ministry notice.

However, such a move would likely allow industry to have a greater say in
how patents are examined because the new entity would have an autonomous
administration even as it works to serve the public, according to academic
researchers tracking the development. For this reason, patient groups argue
the government is essentially abdicating its role.

“The patent system is based on an exchange between private and public
sectors. But if it is taken out of the public domain and effectively placed
into the private domain, it would be like having the fox watch over the
chickens. The private sector would decide for itself whether an invention
is merited or not,” said Pedro Villardi, coordinator at the Brazilian
Interdisciplinary AIDS Association.

“The patent examination is a crucial step in deciding whether a drug patent
stays in private hands or is in the public domain. And if there is more
room for the private sector to decide patents, it’s very worrisome, because
the private sector can benefit from a fragile examination process and
receive more patents to establish more monopolies that can be used to raise

Interfarma, the trade group for brand-name drug makers in Brazil, could not
be reached for comment.

The issue arises amid ongoing scuffling among patient advocacy groups and
the pharmaceutical industry over patents and access to medicines in
different countries. Drug makers regularly argue that patents preserve the
profits needed to invest in innovation, while patient advocates have pushed
back that the pharmaceutical industry too often attempts to exploit patents
at the expense of affordable health care.

The battle is playing out across the globe as the cost of medicines has
prompted a growing number of people to skip or forgo treatment, or face
financial strain. The proposal from the Brazilian ministry is just the
latest example in which the problem has factored into a larger government
debate over budgets and resources.

As a practical matter, the proposal by the Brazilian ministry could benefit
industry — but not just the pharmaceutical industry — because the number of
patent examiners may be reduced, given that the Ministry of Economy is
looking to find a way to lower costs. This suggests that the workload
confronting examiners in the newly formed entity would weaken the review

As of July, the Brazilian patent office had 318 reviewers and a backlog of
more than 131,000 applications, or about 412 pending applications per
examiner, according to Eduardo Mercadante, a PhD student in international
development at the London School of Economics, who also works with the
Institute of Economics at the Federal University of Rio de Janeiro.

If the move reduces the number of examiners and increases the time needed
to examine patents, then more patents would be extended under Brazilian
patent law, potentially benefiting drug makers. This also raises concern
that lower-quality patents could be granted, according to Villardi.

If the number of examiners is cut but review time is not increased, “that
almost certainly would mean the (office) is not examining the patents very
carefully, so patents that shouldn’t be granted get granted,” said Ken
Shadlen, a political scientist at the London School of Economics who
studies the global pharmaceutical industry and patent issues

“If the government is serious about reducing the application backlog, then
they need to pour more resources into INPI, not shrink it and examination
capacities,” he continued. “This proposal has some of the examiners going
to (the Brazilian Agency for Development and Industrial Property), so even
if nothing else changed, this is, at best, a reduction in human resources
allocated to examining patent applications.

“…There is also the point about ‘privatization,’ which isn’t just a legal
thing, but about how pro-grant biases get built into the process of patent

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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