BRAZIL Law and Practice Contributed by: Gabriel F Leonardos, Claudio Barbosa and Viviane de Medeiros Trojan, Kasznar Leonardos Intellectual Property
lowing the Supreme Court’s ruling deeming the sole paragraph of Article 40 unconstitutional. In response to the minimum ten-year term safe- guard, several patent owners have filed lawsuits seeking compensation for term loss due to the PTO’s delay. While there is still no binding inter- pretation given to the patent-term adjustment (PTA) question, recent trial and appellate court decisions have suggested that plaintiffs seek- ing term adjustments face significant challenges, especially in the absence of explicit provisions regulating the adjustment hypotheses in the Bra- zilian Patent Statute. 1.5 Rights and Obligations of Owners of Intellectual Property Rights A patent shall afford its owner the following prin- cipal rights. • Preventing others from producing, using, offering for sale, or importing for such pur- poses, without their consent, a product that is the subject matter of a patent or the process or product directly obtained by a patented process, as well as their respective equivalent product or process. • Preventing third parties from contributing to anyone carrying out the acts mentioned above. • Licensing the right of use of the patent by third parties and transferring the ownership of the patent. • Being indemnified for unauthorised exploi- tation of the subject matter of their patent, including exploitation that occurs between the date of publication of the application and the date of issue of the patent. • Being indemnified for the damages in respect to acts that infringe industrial property rights directly, by equivalence and/or by contribu- tion.
In return, the patent owner’s obligation is to pay the annual patent fees and use the patent in a lawful manner within Brazil. Although it is rare, some of the patentee’s rights can be mitigated and additional obligations can be created, such as that which occurs by means of the compulsory licence (which, so far, only happened once, since the enacting of the cur- rent statute, in 1996). Preliminary injunctions are available to patent owners in Brazil to immediately halt infringement (Article 209, paragraph 1, LPI). Courts grant such remedies upon evaluating prima facie evidence of infringement and risk of irreparable harm. Patent owners are not required to provide pub- lic information, such as patent listings or use codes, for specific products or processes. However, information may be available for self- declared standard-essential patents (SEPs) in the telecommunications sector, typically through standard-setting or standard-developing organi- sations (SDOs) like the Brazilian Association for Technical Standards. 1.6 Further Protection After Lapse of the Maximum Term There is no further protection available. Once the patent has expired, the subject matter enters the public domain. 1.7 Third-Party Rights to Participate in Grant Proceedings Third parties may oppose the granting of a patent by submitting relevant documents and information that would render the invention not patentable. This can be done:
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