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Hot Topic – Mailbox patents

According to a recent decision¹ issued by the Brazilian Superior Court of Justice, the term of protection of mailbox patents is 20 years counted from its filing date.

In this case, a pharmaceutical company filed a lawsuit against the Brazilian Patent and Trademark Office (“BPTO”), arguing that, due to the BPTO’s delay in examining its patent application, the patent should be valid for 10 years counted from the date of grant, as this minimum term of protection would be provided by the sole paragraph of article 40 of the Brazilian Industrial Property Act.

The Court dismissed the company’s appeal based on the understanding that, for patent applications filed under the “mailbox” provision of the TRIPS Agreement, the Brazilian Industrial Property Act limits its protection to 20 years counted from the filing date, and courts should not apply the minimum term of protection of 10 years from grant.

¹Special Appeal No. 1.721.711