[Ip-health] Organizations contest the constitutionality of the Brazilian IP Law

[Gabriela Chaves]

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Organizations contest the constitutionality of the Brazilian IP Law

 Mechanism for the granting of patents known as pipeline patents violates t=
he
Federal Constitution

On November 28th, the National Federation of Pharmacists (FENAFAR), on beha=
lf
of the Brazilian Network for the Integration of Peoples (Rebrip), presented=
 to
the General Attorney of the Republic, Mr. Ant=F4nio Fernando Barros e Silva=
 e
Souza, evidence that demonstrates the unconstitutionality of two articles o=
f
the Brazilian Industrial Property Law (Law 9.279/96). According to the auth=
ors
of the case, articles 230 and 231 of Law no. 9.279, that created the patent
granting mechanism known as the pipeline, violate the constitutional
principles that impose the supremacy of societys interest and the pursuit o=
f
the countrys technological and economic development over intellectual prope=
rty
protections (art. 5, XXIX). They argue that the granting of pipeline patent=
s
also violates the societys acquired right (art. 5, XXXVI); implied due lega=
l
process (art. 5, LIV) and the principle of equal treatment before the law
(art. 5, caput).

The pipeline mechanism is an institution created by the Industrial Property
Law that allowed the filling of patents in technological fields that, prior=
 to
1996, had not yet been granted in Brazil. The mechanism made it possible to
obtain patent protections for pharmaceutical and food products (among other
products). The requests for patents via the pipeline mechanism are only
subject to a formal analysis and they follow the terms of the patent grante=
d
in foreign countries. They are not submitted to a technical evaluation of t=
he
products ability to meet patentability requirements novelty, inventiveness =
and
industrial application conducted by the Brazilian patent office, the Nation=
al
Institute of Industrial Property (INPI in Portuguese). In total, 1 182 pate=
nts
were filed under the pipeline mechanism, many of which are for essential
medicines used in the treatment of HIV/AIDS and leukemia, for example. Many=
 of
the products for which patents had been granted through this mechanism were
already in public domain prior to 1996.

A study elaborated by economists calculated the hypothetical financial loss=
es
caused by the adoption of the pipeline mechanism in the case of government
purchases of five anti-retroviral drugs (ARVs), during the period 2001-2007=
.
The results show that, due to the granting of unmerited patent protections =
for
these medicines, the Brazilian state paid an additional US$ 420 million, wh=
en
prices paid were compared to the World Health Organisations minimum prices,
and an extra US$ 519 million, when compared to the minimum prices of Doctor=
s
Without Borders (MSF) for the ARVs.

 In the opinion of Cristina Pimenta, General Coordinator of the Brazilian
Interdisciplinary AIDS Organisation (ABIA), the organisation currently
coordinating the Rebrips Working Group on Intellectual Property, instead of
contributing to the development of the country and serving public interest,
the pipeline mechanism only serves as an obstacle to universal access and
gratuity of treatment for people with HIV/AIDS. FENAFARs president, C=E9lia
Chaves, adds, no gain has been made by this concession neither for the
national pharmaceutical industry and sector, nor for the population in
general. All were harmed by pipeline patents.

Rebrip and FENAFAR hope to have the current case approved by the General
Attorney of the Republic, so that it will be sent to the Federal Supreme Co=
urt
in the form of a direct action of unconstitutionality.

Examples of pipeline patents:

Efavirenz, a medicine for which a compulsory license was recently issued, i=
s
protected by a patent granted through the pipeline mechanism. In other word=
s,
when the patent of this drug was filed in Brazil, it no longer met the nove=
lty
requirement, as the information on the invention had already been published
abroad five years earlier. This active ingredient could have been produced =
in
Brazil, as it was in India.

Other medicines that are fundamental for curbing the HIV/AIDS epidemic, suc=
h
as  lopinavir/ritonavir, abacavir, nelfinavir and amprenavir, also were
protected by the pipeline mechanism, and as such, were withdrawn from publi=
c
domain without any evaluation of its importance in terms of the countrys
interests. Furthermore, the medicine for cancer imatinib or Glivec (brand
name) was also protected by the pipeline mechanism. This drug, used to trea=
t
people living with Chronic Myeloid Leukemia, currently costs R$ 10 000,000
(ten thousand Brasilian reals) per month, per patient.

Contacts:

Renata Reis (ABIA/GTPI/Rebrip): +55 21 9114 1838

Elo=EDsa Machado (Conectas Direitos Humanos): +55 11 3884 7440

Zizia (Fenafar): +55 11 3259 1191

F=E1tima Mello (Rebrip):+55 21 - 2536  7650

Renata (Fenafar, Press Advisor):+55 11 9327 1747

Cl=E1udio Oliveira (ABIA, Press Advisor):+55 21 2223 1040 / +55 21 9202 653=
4