Social cost of pending the patent examination in Brazil

• Sílvio Sobral Garcez Júnior

  Federal University of Sergipe, Brazil

  Author

• Rodrigo Nogueira Albert Loureiro

  Federal University of Sergipe, Brazil

  Author

• Bruno Ramos Eloy

  Federal University of Sergipe, Brazil

  Author

• Gabriel Francisco da Silva

  Federal University of Sergipe, Brazil

  Author

• João Antonio Belmino dos Santos

  Federal University of Sergipe, Brazil

  Author

• Francisco Valdivino Rocha Lima

  Federal Institute of Piauí, Brazil

  Author

In Brazil, the general rule is that the invention patent has a duration of 20 years and that of a utility model, 15 years, counted from the filing date of the patent application. However, if the examination of a patent of invention or utility model is not completed within 10 or 8 years, respectively, the sole paragraph of art. 40 of Law nº 9,279/96 - Industrial Property Law (LPI) determines a differentiated methodology for the calculation of the validity of the right. The standard in question provides that, in this case, the patent will be valid for at least ten years in the case of IP and seven years in the case of MU, counting from the date of the granting of patent (and not the file). The present paper deals with the problematic involved in the extension of the term of validity of patent in the hypothesis of administrative slowness of Brazilian Office (INPI) in the appraisal of the application. As the vast majority of patents are granted using the benefit provided in the sole paragraph of art. 40 of the LPI, it will be analyzed the social cost of the automatic extension of the term of validity of the patent in the post-patent segment (pharmaceuticals and agricultural pesticides). It was found that the accumulated loss of the public coffers only taking into account nine medicines purchased by public health system (SUS) in regular centralized purchases up to January 2016 was over R$ 2 billion. As for agricultural pesticides, there was an annual cost of approximately R$ 318 million for the group of eight patents that were extended with the application of the legal safeguard.

1. Sílvio Sobral Garcez Júnior, Federal University of Sergipe, Brazil

   Postgraduate Program in Intellectual Property Science

2. Rodrigo Nogueira Albert Loureiro, Federal University of Sergipe, Brazil

   Postgraduate Program in Intellectual Property Science

3. Bruno Ramos Eloy, Federal University of Sergipe, Brazil

   Postgraduate Program in Intellectual Property Science

4. Gabriel Francisco da Silva, Federal University of Sergipe, Brazil

   Postgraduate Program in Intellectual Property Science

5. João Antonio Belmino dos Santos, Federal University of Sergipe, Brazil

   Postgraduate Program in Intellectual Property Science

6. Francisco Valdivino Rocha Lima, Federal Institute of Piauí, Brazil

   Postgraduate Program in Intellectual Property Science

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Copyright (c) 2019 Sílvio Sobral Garcez Júnior, Rodrigo Nogueira Albert Loureiro, Bruno Ramos Eloy, Gabriel Francisco da Silva, João Antonio Belmino dos Santos, Francisco Valdivino Rocha Lima

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