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15 May 2000
Under previous legislation, the patent term was 15 years starting on the date of filing for registration. Therefore, the patent would have expired (and thereby would have fallen into public domain) in 1999. However, Brazil ratified the TRIPS (Trade Related Intellectual Property) agreement in 1995 and this grants a 20-year term of protection.
The BPTO has taken the view that ratification of the TRIPS agreement is not enough - the 20-year term must be expressly provided for in national legislation (despite provisions in the TRIPS agreement which state the contrary).
Du Pont filed the suit against the BPTO on the ground that the international agreement entered into force in Brazil on the date of ratification (ie, implementation by domestic legislation is not necessary).
The Federal Court agreed with Du Pont, and therefore decided that the company's patent term had been extended to 20 years with the ratification of TRIPS in 1995.
This case is important for any foreign patent holder who had filed to register a patent in Brazil prior to 1995, as the term of validity has been extended by five years.
For further information on this topic please contact Eduardo Magalhães Machado at Montaury Pimenta, Machado Lioce by telephone (+55 21 240 1396) or by fax (+55 21 240 1524) or by e-mail (email@example.com).
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