IP OVERVIEW OF BRAZIL

Brazil was one of the first countries in the world to establish a patent system, but it was not until 1945 that the first patent law was enacted. In 1971, Brazil established the Industrial Property Office. In the same year, the Industrial Property Law was promulgated and the implementation rules were promulgated in 1973.

After the 1970s, the Brazilian government introduced laws and regulations such as the Industrial Property Law (1971) (including trademarks and patents), the Copyright Law (1998), the Copyright Law on the Protection of Computer Programs (1998), and Biosafety Law (1995), the Seed Law (1997) to protect and motivate knowledge innovation and promote domestic economic growth. In recent years, Brazil has continuously revised and improved the patent system to provide more effective legal protection for the protection of intellectual property rights. In 1996, Brazil introduced a new industrial property rights system and amended the Industrial Property Law. The new law came into force on May 15 of the following year.

Brazil is a signatory to the General Agreement on Tariffs and Trade (GATT) Uruguay Round Accords, including the Trade Related Aspects of Intellectual Property (TRIPs) Agreement, signed in April 1994. Brazil is a member of the World Intellectual Property Organization (WIPO) and a signatory of the Bern Convention on Artistic Property, the Washington Patent Cooperation Treaty, and the Paris Convention on Protection of Intellectual Property.

Brazil has passed revised copyright, software, patent, and trademark legislation.

Brazil’s new Industrial Property Law took effect in May 1997, bringing most respects of Brazil’s patent and trademark regime up to the standards specified in the WTO/TRIPs Agreement. However, the new law also includes compulsory licensing and local working requirements that appear to be inconsistent with the TRIPs. Although Brazil has made progress toward improved protection for intellectual property rights, it must take further significant steps to combat piracy.

Patent

The legal basis for Brazilian patent protection is Article 5 of Title 29 of the Constitution and Industrial Property Law No. 9279/96. In most respects, Brazil Industrial Property Law 9.279/96 brings its patent and trademark regime up to the international standards specified in the TRIPs Agreement.

The new law provides patent protection for chemical pharmaceutical substances, chemical compounds and processed food products, which were not patentable under Brazil’s 1971 Industrial Property Code. The present law also provides the patentability of transgenic microorganisms, when it attends to the requirements of novelty, inventive activity and industrial application. The law provided "pipeline" protection, effective immediately, for pharmaceutical, chemical and processed food products that had been patented in other countries but not yet placed on any market. This possibility was an opportunity for that period since the Law required the patent application should be filed within a period of one year from the date of publication of the Law.

The present Industrial Property Law includes the compulsory licensing only in the specific cases when the owner of the patent is exercising the called "busive rights" inconsequence of this property. In this case, this license will only be granted to a third party that has a technical and economical ability to explore the object of patent.

The law would theoretically permit the grant of a compulsory license if a patent owner has failed to work, i.e. locally manufacture, the patented invention in Brazil within three years of issuance.

Chemical substances, pharmaceuticals, nutraceuticals and their manufacturing methods, alloys, substances or products obtained by atomic nuclear transformation methods and methods of preparation, scientific discoveries and theories, micro-organisms, medical technology, business methods and computer software cannot be patented. For the examination and approval of patent applications, early disclosure (opening 18 months from the filing date or priority date), late review (review after the applicant submits the review request within 24 months after publication) and public objection (in the case of anyone can submit an opinion on the application within 90 days of the publication of the review. In addition, the present law extends the term for patents from 15 to 20 years for patent of inventions, and utility model and industrial design patents for 10 years.

If the patentee does not implement the patent in Brazil within 3 years from the date of approval, or terminates the implementation for more than one year, or if the implementation does not meet the market needs, then a compulsory license may be adopted. If the patent is not implemented for 4 years after the approval of the patent, or if the license contract is not implemented for 5 years, or if the implementation is suspended for more than 2 years, the patent right may be declared invalid. If a foreigner obtains a patent in Brazil and the technology has been implemented in a foreign country, Brazil has the right to import the patented product without the consent of the patentee.

Trademark

The present Industrial Property Law provides for significant improvements in Brazil's trademark regime, including better protection for internationally known trademarks. Trademark licensing agreements must be registered with the National Institute of Industrial Property (INPI) to be enforceable against third parties; however, the failure to register licensing agreements will no longer result in cancellation of trademark registration for nonuse.

The fraudulent use of internationally "well-known" marks has been a significant problem in Brazil. However, progress has been made in this area as Brazil has taken action in the last 4 years to provide greater protection for such marks.

Some foreign firms have been successful in court actions against trademark infringement.

Trade Secret

Brazil does not have a statute that specifically provides protection to trade secrets or know-how. Trade secrets in Brazilian are mainly protected by Article 195 of the Industrial Property Law. In addition, international treaties such as the Criminal Division of the Brazilian Unfair Competition Law, the Paris Convention and the Agreement on the Protection of Intellectual Property Rights related to Investment also protect trade secrets. There is only an indirect form of protection, derived from the practice of unfair competition, against a third party who improperly disclose or explore the respective know how, information, or confidential data used in the industry, commerce or services.

Copyright

The Copyright Law in Brazil is Decree No. 9.610 (February 19, 1998), with a total of 8 chapters and 115 articles. Brazil's copyright law generally conforms to world class standards, although amendments are needed to address parallel imports.

Likewise, its software copyright protection law contains provisions that introduce a rental right and an increase in the term of protection to 50 years. Despite passage of these copyright laws in 1998, widespread piracy of copyright and trademark materials remains a problem.

Despite the government’s recent efforts to stem the flow of pirated goods across the border with Paraguay, enforcement of copyright laws has generally been lax. In the last 3 years, enforcement of laws against video and software piracy has improved and the government and the private sector have initiated action to reduce the importation of pirated sound recordings and videocassettes.

Some foreign firms have been successful in using the Brazilian legal system to protect their copyrights.

The Brazilian Congress passed a law in July 2003 that increased minimum prison sentences for copyright violations and established procedures for making arrests and destroying confiscated products. In November 2004, the government strengthened to combat piracy and Intellectual Property crimes. In 2005, the Council developed and began implementing a national plan for combating piracy and smuggling.

Provided by Bicudo Marcas & Patentes in Brazil.