Patentes de medicamentos: análise sobre os interesses da indústria farmacêutica em paralelo ao direito fundamental à saúde

Abstract

Pharmaceutical patents confer exclusivity rights – also understood as a legal monopoly – to the inventor for a fixed time, as a reward and incentive to Research and Development (R&D). However, this legal monopoly allows the practice of exaggerated prices by the pharmaceutical industry, favoring a social loss in terms of citizens' access to medicines and, therefore, regarding the exercise of individuals' fundamental right to health. Amid this paradox between the granting of pharmaceutical patents and the monopoly of medicines by the pharmaceutical industry, the unconstitutionality of art. 40, single paragraph of the LPI was analyzed by the Federal Supreme Court in May 2021, through ADI 5,529, which dealt with the extension of the legal term of exclusivity of patents. The STF understood that the provision is unconstitutional, but what can seem, at first, a benefit for the population's access to health, may actually cause a disincentive to the country's technological development. The truth is that, in the midst of the complexity of this paradoxical relationship, the problem could be solved by correcting the outdated structure of the Institute National Industrial Property - which examines patent applications filed in Brazil - in which case such a provision is considered unconstitutional would become irrelevant and dispensable due to the efficiency and celerity of the autarchy