Licenciamento compulsório automático de patentes no Brasil

Abstract

In the face of the challenges posed by the COVID-19 pandemic, several legislative proposals were drafted aiming to reformulate the compulsory licensing of patents in Brazil. In this context, although not approved by the National Congress, the emergence of proposals advocating the automatic application of this institute in certain situations drew attention, particularly the Bill 1,462/2020. Despite receiving support from politicians across the political spectrum, experts, and various civil society organizations, this measure faced strong opposition, especially from sectors of the transnational pharmaceutical industry and its representatives. Given this scenario, while collecting, summarizing, and systematizing the criticisms directed at Bill 1,462/2020, the present investigation identified two main groups of arguments against this proposition and sought to understand, firstly, whether, at the time of its proposal, the automatic compulsory licensing of patents would be effectively necessary and, secondly, whether this automaticity would be legally viable in Brazil. To do this, based on the definitions proposed by Robert Yin, a single, holistic, and explanatory case study was developed. As a result of this study, supporting the initial hypothesis, it can be affirmed that, at the time of its proposal, automaticity could be considered necessary to avoid, at least in emergency times, undue delays and safeguard compulsory licensing from the momentary conveniences and vulnerabilities of a government policy. Furthermore, regarding the second research question, it can be stated that this measure would be perfectly aligned with the Brazilian legal framework and, therefore, would be legally viable.