Under the TRIPS agreement, countries that are members of the WTO must provide for periods of patent protection for at least twenty years from the filing date of the application giving rise to the patent in question. However, developing countries were entitled to delay the implementation of this provision until the year 2000. The Brazilian Patent Office has up to now taken the view that although Brazilian Patent Law has in general been amended to comply with TRIPS (see our August 1996 Newsletter (N.S. 187) and our July 1997 Newsletter (N.S. 188)), Brazil was entitled under TRIPS to delay implementation of a twenty-year term. Therefore in its view it was proper that until the year 2000, patents, granted on applications filed before Brazil's law was amended on May 15, 1997, should continue to be granted with fifteen-year terms as provided under the previous law.

In the case of Akzo Nobel N.V. v. Diretoria de Patentes do INPI, a panel of the Second Federal Court of Appeal has disagreed with this view, issued a writ of mandamus against the Patent Office and ordered the patent in question to be granted for a twenty-year term. In the Court's opinion TRIPS was a self-executing treaty once it had been ratified and so the twenty-year term it called for should be respected in Brazil from that date. Moreover, because of the reasoning employed, it appears that under Article 70.2 of TRIPS all patents that were in existence in Brazil when TRIPs was ratified by Brazil may be entitled to a twenty-year term. If there are any patents in this category on which our clients need more detailed advice, they should contact us.

We understand, however, that the Brazilian Patent Office has not yet changed its position and it still takes the view that fifteen-year terms are correct for applications filed under the previous law. It therefore appears that, for the time being at least, court action is still required to secure patents with twenty-year terms.