Brazil's pipeline patents under threat

Brazil's Attorney General has reported that parts of the country's Industrial Property Law could be unconstitutional, if complaints by civil society groups are upheld. Articles 230 and 231 of Brazil's 9.297/96 legislation created a mechanism known as the pipeline, allowing drug patents to be approved, based on the date of first filing in a foreign country.

Critics note that, under some circumstances, the law means items that have entered the public domain are retrospectively attributed marketing exclusivity, according to Intellectual Property Watch. Pipeline patents in all sectors, including pharmaceuticals, accounted for 1,182 patent requests in Brazil, with 45% coming from US sources, Lia Hasenclever, a researcher at the Federal University of Rio de Janeiro, claims.

One area of concern to local opponents of the pipeline scheme is that, because Brazil has agreed to recognize the priority of foreign-registered intellectual property rights, the country's own National Institute for Industrial Property (INPI), which includes the function of a patent office, does not examine pipeline applications for novelty, inventiveness or industrial applicability. Mauro Maia, an attorney at the INPI told IP Watch that "the situation is a scandal."