The Brazilian Industrial Property Law (Law No. 9,279\/96 \u2013 LPI), considered one of the most solid and effective rules for the protection of industrial property rights, encompassing patents, industrial designs, trademarks and geographical indications, in addition to curbing unfair competition. Its relevance stands out among the various legal instruments adopted by WTO member countries and signatories to the main international treaties on the subject, such as the Paris Convention for the Protection of Industrial Property \u2013 CUP (1883) and the Agreement on Trade-Related Aspects of Intellectual Property Rights \u2013 TRIPs\/ADPICs (1994).<\/p>\n
In addition to aligning itself with the social interest and the technological and economic development of the country, the LPI establishes fundamental principles, such as the granting of invention and utility model patents (art. 2, I). This provision is in line with art. 5, XXIX, of the 1988 Federal Constitution, which guarantees inventors the temporary privilege of exploiting their creations, with a term of 20 years for invention patents and 15 years for utility models, counted from the filing of the application with the National Institute of Industrial Property (INPI), a federal agency responsible for examining and granting these rights since its creation in 1970 (Law No. 5,648\/70).<\/p>\n
Under the terms of art. 41 of the LPI, the extent of the protection granted by the patent is determined by the content of its claims, interpreted based on the descriptive report and the accompanying drawings. Furthermore, according to art. 42, I and II, the patent grants the right to prevent third parties, without the express authorization and consent of the holder, from producing, using, selling or importing products that are the subject of a patent or processes and products that have been obtained by processes previously patented with the INPI, an instrument that therefore guarantees the author of an invention and utility model that have been granted a patent, the guarantee of exclusive exploitation and the so-called \u201cnegative\u201d right and exclusion of competitors who, eventually, begin to use protected objects, products and processes improperly. Furthermore, art. 44 of the LPI guarantees the holder the specific right to obtain compensation for improper exploitation of the object, including that which occurs before the granting of the patent and during the administrative examination phase by the INPI.<\/p>\n
In addition to regulating the protection of industrial property rights and the administrative procedures for obtaining them, the LPI defines unlawful conduct and patent infringements in a specific chapter. According to articles 183 to 185, the following are crimes against patents:<\/p>\n
Article 186 also considers violations considered \u201cpartial\u201d to be crimes against patents, i.e. violations that do not necessarily cover all the patent claims but still violate its scope of protection, as well as violations that result from the use of equivalent means and that, ultimately, through indirect means, also constitute an infringement.<\/p>\n
As this is a criminal matter, failure to comply with these provisions subjects offenders to prison sentences of 3 (three) months to 1 (one) year, or a fine, without prejudice to other civil sanctions, such as injunctive and compensatory actions, which may be based on the benefits that the injured party would have obtained if the violation had not occurred (LPI, art. 208) and lost profits, determined in accordance with criteria listed in art. 210.<\/p>\n
It is also worth highlighting that, if the offender was or is a representative, agent, agent, partner or employee of the patent holder, or even its licensee, the penalties set for the crimes are increased by one third to one half, due to the aggravating factor, as provided for in art. 196, I of the LPI.<\/p>\n
It is important to emphasize that, in crimes against patents, there is no public criminal action, but a private criminal action (criminal complaint) is required, the initiative of which lies exclusively with the patent holder (art. 199). The LPI also provides for the possibility of precautionary measures, such as search and seizure, regulated by arts. 202 to 204, with reference to the Code of Criminal Procedure.<\/p>\n
This brief presentation reveals the importance of a solid and efficient patent system for the country's technological and economic development, since it encourages innovation and guarantees inventors more effective protection of their rights. The Brazilian legal system, through the LPI, not only protects such rights, but also provides legal instruments to repress infringements, ensuring and guaranteeing authors of inventions and utility models broad and effective protection of the rights and temporary privileges of exploitation of their industrial creations, through direct and objective repression against habitual infringers and unfair competitors who seek to take undue and unauthorized advantage of them and who may be required to respond criminally and civilly for their conduct before the Judiciary. In other words, Brazilian industrial property law is effective, since it produces effects in the real world, whether because it is respected or when violated, possessing all the necessary elements, mainly in the field of sanctions, adequate to what is necessary to resolve conflicts in a satisfactory and adequate manner.<\/p>\n
<\/p>\n
Fabiano de Bem da Rocha \u2013 Senior Partner; Lawyer; Specialized in Industrial Property from the University of Buenos Aires\/UBA and in Civil Procedure from PUCRS.<\/em><\/p>","protected":false},"excerpt":{"rendered":" A Lei da Propriedade Industrial brasileira (Lei n\u00ba 9.279\/96 – LPI), considerada uma das mais s\u00f3lidas e eficazes normas de prote\u00e7\u00e3o aos direitos de propriedade industrial, abrangendo patentes, desenhos industriais, marcas e indica\u00e7\u00f5es geogr\u00e1ficas, al\u00e9m de coibir a concorr\u00eancia desleal. Sua relev\u00e2ncia se destaca entre os diversos diplomas legais adotados por pa\u00edses membros da OMC […]<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-10374","post","type-post","status-publish","format-standard","hentry","category-leao-news"],"acf":[],"_links":{"self":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/10374","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/comments?post=10374"}],"version-history":[{"count":1,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/10374\/revisions"}],"predecessor-version":[{"id":10375,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/10374\/revisions\/10375"}],"wp:attachment":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/media?parent=10374"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/categories?post=10374"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/tags?post=10374"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}