Can vs. Could

The effects of direct action of unconstitutionality no.5,529 on pharmaceutical patent terms

Resumo

The landmark ruling of the Direct Action of Unconstitutionality No. 5,529 (DAU 5,529) declared the unconstitutionality of Section 40, sole paragraph, of the Brazilian Industrial Property Code, which proposed an automatic and indeterminate patent term extension. However, four years later, there has been no public effort to identify the patents affected by the decision and to monitor its implementation by the Brazilian patent office (INPI). This short paper therefore aims to begin filling this data gap through exploratory research, analyzing a sample of 500 patents whose protection periods were adjusted by the INPI. The hypothesis presented here is that the DAU 5,529 had very limited effects on expanding access to healthcare thus far, since most patents affected by the decision are still in force and patent holders have been using administrative strategies to extend their invention’s term. The results of the empirical research confirm the hypothesis and indicate that a more in-depth and comprehensive analysis of the outcomes of DAU 5,529 is necessary.