Patent protection in Brazil: is this the end for Viagra?

According to PRÓGENÉRICOS, the Brazilian Association of the Generic Drug Industry, more than 7 million pills of Viagra were sold in Brazil in 2007, representing a market value of approximatelly BR$ 210 millions. It is estimated that, with the end of patent protection of Viagra, its current price will decrease from betwen 35% and 50%.

The discussion on whether Viagra will turn into a generic drug this year or in 2011 has probably reached its final stage, and a final court ruling by the Superior Justice Court is expected soon.

The issue may be summarised as follows: did the twenty-year patent protection for Viagra in Brazil, commence on June 20, 1990, when the patent application was originally filed in the UK (and later abandoned), or did it start only on June 7, 1991, when that application was filed at the EPO?

If, in one hand, Pfizer claims that the patent protection for Viagra started on june 7, 1991, (ending in 2011), for the Federal Government the twenty year term commenced already on June 20, 1990, thus falling into the public domain this year.

The Federal Regional Court of Rio de Janeiro (as Appelate Court) ruled in favour of Pfizer, but the Brazilian Patent and Trademark Office (BPTO), unwilling to accept this decision, filed an appeal to the Superior Justice of Court.

Last Wednesday, the Superior Justice of Court (2nd Chamber) opened the session and three judges already voted against Pfizer, arguing that the patent protection for Viagra ends this year. The session was, however, suspended and will be resumed within two weeks, when six more judges will have the chance to express their vote.

From the news made available so far, it appears that the Federal Government and other federal Agencies, such as the BPTO, do not expect other ruling than the falling of Viagra patent into public domain this year.

The final decision on this suit is awaited with great expectation, since it may represent an historical ruling, a leading case for all remaining ones and an emblematic victory for the federal government and other federal agencies, taking into account the fact that the presidential elections will take place this year.

Posted by Jeremy for Jorge Miguel Arruda da Veiga (DiBlasi)