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Thursday 18 March 2010

José Carlos Vaz e Dias

Brazil Announces Public Consultation on Possible Retaliation of IP Rights and Awaits the US Proposal

The Brazilian government did not wait for the set deadline of March 23 (see it here) to address the cross retaliation against the US IP Rights and therefore it was published last Monday (March 15) CAMEX Resolution no. 16, of March 12, 2010 (see the full text in Portuguese http://www.mdic.gov.br/arquivos/dwnl_1268663608.pdf).

This Resolution specified a group of 21 measures that will be taken into consideration to retaliate on IP Rights owned by American citizens or American companies that are protected and/or exploited into the Brazilian territory. The measures may be applied cumulatively or the government may pick one bullet and use it against the condemned US subsidies to cotton producers. The total retaliatory sanctions on IP rights cannot surpass the amount of US$ 270 million.

The measures range from “denial, for a limited time, of the protection period for rights over medicine (including veterinary) product or process patents”, “grant of compulsory licensing” to “suspension of the owner’s exclusive right to prevent the import and commercialization on the domestic market of medicines, veterinary and agricultural chemical and biotechnology” (see attached Appendix III – Draft Measures in English http://www.diblasi.com.br/information.pdf).

However, the measures to be used by the government will follow the indication and contribution of the Brazilian people, since the aforementioned Resolution 16/2010 opened up a public consultation procedure and gave 20 days to whom it may concern to manifest its opinion and propose recommendations on the 21 measures.

This means that foreign people besides the Brazilian may be able to present its recommendations on the possible retaliatory sanctions. Further to that, the Resolution gives preference to the opinions rendered by class associations, as stated on Item 1 of Annex 1.

As reported, Brazil is awaiting the involvement of American companies of different activities and associations to participate in the Consultation and to press the American Congress.

Let’s see if the Brazilian strategy will work out.

José Carlos Vaz e Dias

José Carlos Vaz e Dias