Propiedad industrial e intelectual y desarrollo tecnológico

Ross Kaufman 28 quality in relation to the products and services produced in the place of origin by the licensor, except for those rules which, witb respect thereto, .are issued internally by tbe competent organs - in tbis case the effects of recordation can be suspended ftprincipally in defense of the consumer" and Paragraph 3.5.2 tells wbat the contract cannot sayo These strictures are basically like tbose establisbed for patents, with sorne additions such as that tbe contract cannot "introduce rules that restrict the advertisingor diffusion that can be realized by the licensee, observing effective legal rules". Contracts for tbe supply of what the regulation calls "fornecimento de tecnología industrial" are defined as those having as their specific purpose the "acquisition" -emphasis on acquisition- "of knowledge and techniques not protected by industrial property rights deposited or granted in the country, to be applied in the production of assets for consumption or inputs, generally". This, then, is unpatented know-how and trade secrets, and is understood to inelude (a) aIl technical engineering data for the product or process, (b) supply of data and information for updating the process or product and (e) the supply of technical assÍstance by the supplier's technicians and training of specialized technieal staff of the acquiror. The Brazilian rules treat a transfer of unpatented know-howas a sale, Qot a license. ll1is position has not been a great incentive to the transfer of unpatented technology. In case anyone misses the paint, Paragraph 4.5.2 (a) prohibits the contraet from "including, implieitly or explicitly, any refer– ences to industrial property rights, such as: lieense, grant of license or of rigts, liceosed produet or process.. and others usually adopted in license agreements". . AN N° 15 imposes, as well, rigorous and vague eriteria for approval of the transaction when the technology to be transferred comes from abroad. These inelude the following: (a) the technológy must fit within "eritéria de sele'iao prioritária", based on the nature of the product or process and its significance for national development, according to the governmental policy for the sector; (b) it must correspond to levels that eannot be reached or obtained in t~e country, "apurados através do con– fronto com-a efetiva e disponível capacita'iao interna para sua execm;ao ou com fontes alternativas já existentes"; (e) it must create qualitative condi- . tioos for the product resuIting from its application, with a view.principally to exportation; and (d) lastIy, among other conditions, it must permit the substitution of import of the product, including of the inputs and com– ponents necessary to its manufacture".