In our August 1996 Newsletter (N.S. 187), we reported on the new Brazilian industrial property law enacted at least in part in order to comply with the obligations under GATT-TRIPS. The Brazilian Patent Office has now issued some clarifications on the new law. In particular it has indicated that notwithstanding the provisions of Article 70.7 of TRIPS, it will not permit the addition of claims directed to previously excluded subject matter in pending applications. It seems that Brazil takes the view that it is entitled to take advantage of the developing country provisions of TRIPS which enable it to delay implementation; the fact that it has passed legislation ahead of the date by which this was required means that it need not implement any provisions of TRIPS which have a retroactive effect, such as Article 70.7, until the dates by which implementation of any of the TRIPS provisions of this type are required. Thus Brazil takes the view that it is not required to accept product claims until the year 2005 or process claims directed to the production of pharmaceutical products until the year 2000. Therefore, it will not be possible to add claims for such subject matter to pending applications before such dates.

A further consequence of Brazil's interpretation of its obligations under TRIPS is that patents granted under the old law will not automatically be extended for a term up to 20 years from filing since Brazil does not believe that it has an obligation to provide for such duration at least until the year 2000.