Justice extends patent of liraglutide to company

Before 2021, the LPI allowed the patent deadlines to adjust in case of major delays by INPI in the concession. However, the Supreme Court declared the unconstitutional automatic adjustment “because it too prolongs the monopoly” of giants such as Novo Nordisk, explained to the Facto News In July, lawyer Fernando Canutto, expert in intellectual property and partner of Godke Advogados. The decision was also based on the interest of the population, as the end of the monopoly of a drug that fights a chronic disease such as diabetes can facilitate its broad production and distribution.

Novo Nordisk, however, states that its resource does not violate the change promoted by the STF. The company says that “seeks a punctual, non -automatic and proportional adjustment of the term of its patent, precisely so that the company can exercise its constitutional right of protection” to industrial creations, as in article 5 of the Constitution. For Canutto, the company’s argument is valid, but in practice it leads to the already rejected monopoly.

Novo Nordisk tries to differentiate this request by saying that it is a punctual, proportional and non -automatic correction. However, the practical effect is exactly the same as what the STF has already rejected, which cannot have patent for over 20 years. There is a merit (in the company’s argument), it is theoretically possible (using it), but it will hardly work. Fernando Canutto, lawyer specializing in intellectual property

Despite insisting that her request is an exception, the pharmacist also said in July that she did not claim only the adjustment of the term of her patent, but a “modernization of the Brazilian patent system” “. It suggests the “inclusion of the legal mechanism for compensation for the term of patents in the national legislation called PATENT TERM adjustment or patent adjustment term, free translation of English).

The company says, moreover, that the Federal Court’s decision regarding the liraglutide was taken based on the new understanding of the Supreme Court. “The Court praised the Patent Term Adjustment (PTA) systems and distinguished automatic and generic extension (from the extinct Art. 40 of the LPI), from the possibility of punctual and grounded adjustment, to compensate for the irrational and unjustified delay of INPI in the patent analysis process”, insists on new Nordisk.

Ambition of the new Nordisk would be contradictory and would not fit the judiciary, for expert. “(The laboratory) is wanting to adjust the structure of the law, change the structure of Brazilian intellectual property to compensate for the delays of INPI, which the Supreme Court has already rejected. After decision 5529, there is no solid legal basis for the creation of this mechanism without legislative amendment,” said Canutto. That is, only Congress could suggest the PTA and put it in force in Brazil.