Propiedad industrial e intelectual y desarrollo tecnológico

Ross Kaufman 24 As foc patents, there are two well-known controversial provisions. First, the terms are 15 years for an invention, and 10years for useful modeIs or designs, a11 calculated from the date of deposit. Secondly, the Industrial Property Code contains a Chapter that permits mandatory licensing of a patent in the event of non-exploitation in the country. These provisions have been a source of disagreement and criticism inside and out of Brazil because: (a) it has been asserted that the duration of patent protection shoud be longer, as it is in the United States for example; and (b) because it is asserted that the calculation of the duration of protection should begin with the granting of the patent and not retroac– tively back to the date of its application, since dilatory processing (aIso widelyclaimed to be a fact ofBrazilian regulatory practice - it is said to take at k:ast 4-5 years) by administrative authorities can eat up a significant portion of tbe usefullife of tbe patent.· . . What items are not susceptible of pateot protection under the In– dustriaCProperty Code? Here Brazil haS been a high visibility leader in excluding "food, chemical-pharmaceutical and medicinal substances, materials, mixtures or products, of any kind, as well as the respective processes for obtaining or modifying them" (Art. 9 (c)).. This limifation on patent protection has, ofcourse, be'eáat the center of bilateral controversy -u. S. trade sanctions against Brazil- and multi– lateral dispute- the current Uruguay round of the GATI discussions, both of which will be explored at length in the course of this seminar. The basic statutory provisions ¡mpose sorne other restrictions in respect of patents that are noteworthy. Art. 29, provides that a patent Iicense "cannot impose restrictions on marketing of the product covered by the ¡icense, as weU as the importation of inputs necessary to its manufac– ture". Art. 36 provides that obtaining a privilege or the granting of a license for its exploitation are subject to recordation in the National Intellectual Property Institute or "INPI". This latter provision in itself is unremarkable, but 1would like to focus on the roJe of the INPI in the administration -and creation- of the law in Brazil and, as a consequence of its augmented involvement, its apparently fundamental impact on Brazilian economic development. So far as marks are concerned, the provisions of the Industrial Proper– ty Code are predictable. A fewof the highlights: Art. 59 guarantees in Brazil ownership oC the mark and its exclusive use for the person having registered such mark in accordance with the Code, to distinguish his products. mer-