On the categorical prohibition of patenting: what is contrary to public health

Abstract

The study examines the application of Article 18, I, of the Industrial Property Code of 1996 (Law 9,279/96), concentrating on the categorical bar to the patenting of whatever is contrary to public health. It starts from the notion of a bound procedure for granting patents, according to which the INPI declares the requirements and constitutes the exclusive right, without any judgement of expediency, which makes categorical prohibitions an exceptional measure. The text covers the earlier law, Article 4 quater of the Paris Convention, the provisions of TRIPS, judicial precedents, foreign law and the understanding of the Brazilian classics. It discusses the criteria for interpreting the rules on patents and the principle of the universality of technologies, proposing a reading in conformity with TRIPS and the Constitution, by which refusal is grounded on the need to prevent the exploitation of the invention and not on the mere grant of the privilege. It also addresses the ex ante assessment of morality, public order and public health and the role of ANVISA in prior consent. It closes by delimiting the pragmatics of refusal: cases of unconditional exclusion from patenting, prohibitions under special statutes, and technologies whose commercial exploitation runs counter to public health.