Brazilian PTO decides to apostille letters patent related to health technology

On February 8, 2022, the BPTO (Brazilian Patent and Trademark Office) published a notice informing that a apostille will be included in letters patent for patents covering pharmaceutical products/processes and equipment and/or materials for use in healthcare as well as other non-pharmaceutical/healthcare related technologies, in cases where the patent was granted on the basis of the 10-year rule validity term, but said term was adjusted based on the decision of the Supreme Court of Brazil to abolish this legal provision.

This apostille will ensure that objects other than pharmaceutical products/processes and equipment and/or materials intended for use in healthcare will not be unduly affected retroactively by the Supreme Court’s decision.

The main aspects of the apostille are:

  • Considering the operational limitations in the BPTO database (it is possible to have only one expiration date for each patent), the validity of the patent on the BPTO website will be 10 years from from the date of issue.
  • The term of patent validity relating to pharmaceutical products/processes and health products/equipment for application in humans will be 20 years from the filing datein accordance with the decision of the Supreme Court of Brazil, and it will be determined by the apostille.
  • The letters patent will be amended to include the apostille by issuing the decision code 16.3 in the official bulletin of the BPTO, informing the original period of validity, in accordance with point 1.
  • There will be an official internal document justifying the correction. This document will not be automatically published, but may be provided by the BPTO to any interested person, upon request.
  • Patent expiration notice will be published in the BPTO Official Gazette based on the longest period of validity, although the subject matter related to pharmaceutical products/processes and equipment and/or materials for be used in health care has already expired, in accordance with the Letters-Patent of apostille.
  • Patent annuity fees will apply until the longer term.

By adopting this measure, the Brazilian PTO offers patent holders a fair period of time to explore the entire scope covered by the patent, regardless of the technological field. Moreover, it gives a clear perspective of patent expiration date to third parties who wish to explore the protected scope without any risk that could lead to unnecessary litigation.

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