SUSPENDING IP RIGHTS
JURISDICTION REPORT: BRAZIL
Otto Licks and Rodrigo Souto Maior
Momsen, Leonardos & Cia
On February 10, 2010, Brazil’s President Lula enacted Provisional Measure No. 482, providing statutory authority to government agencies to issue compulsory licences, expropriate IP rights and suspend the obligation to maintain an IP regime with minimum standards, as provided by the World Trade Organization’s TRIPs agreement. Te measure is a retaliation under the WTO Dispute Settlement Understanding. It is not known whether it is just a political move to make the US comply with the WTO Appellate Body Report on Subsidies on Upland Cotton or if the new law will be used as another tool in Brazil’s anti-intellectual property arsenal.
Te provisional measure relates to Brazil’s recent victory before the WTO’s Dispute Resolution Body against the United States over federal subsidies to the US cotton industry. Brazil was authorised to retaliate, applying trade barriers to American products to the value of approximately $560 million. Moreover, the country was allowed to cross-retaliate in services and intellectual property to the amount of approximately $270 million.
In view of the WTO panel’s result, a couple of bills were presented to Brazil’s congress establishing how the retaliation would be implemented. Bill No. 1893/2007, presented by Representative Paulo Teixeira of Brazil’s governing party, is the most important of these and establishes a number of measures against IP rights, including copyright, trademarks, patents, plant varieties, soſtware and trade secrets, which comprise data package exclusivity rights. Te provisional measure is clearly inspired by this bill and establishes a similar set of measures against those IP rights to be used as retaliation when the WTO Dispute Settlement Body authorises. Among the measures established are:
• The reduction of the term of protection of IP rights • The compulsory licensing of IP rights • The parallel importation of products protected by patents • The increase of official fees for acquiring and maintaining IP rights • The temporary prohibition of the remittance of royalties abroad
• The creation of additional registration requirements for acquiring and maintaining IP rights.
Brazil could apply these measures against a country’s nationals or its residents when it is authorised to retaliate. In the case of the cotton dispute, the measures would be applicable against US residents and US nationals with IP rights in Brazil. Te enactment of the provisional measure while Bill No. 1893/2007 was pending, and right aſter Brazil was allowed to cross- retaliate, suggests that the government is willing to use the measures soon.
Te constitutionality of the measures is dubious and may be challenged
38 World Intellectual Property Review March/April 2010
“INTELLECTUAL PROPERTY RIGHTS ARE PROTECTED IN BRAZIL, NOT ONLY BY THE TRIPS AGREEMENT BUT ALSO BY BRAZIL'S INDUSTRIAL PROPERTY LAW, COPYRIGHT LAW AND, MORE IMPORTANTLY, CONSTITUTION. IN FACT, IP RIGHTS ARE TREATED BY THE CONSTITUTION AS FUNDAMENTAL RIGHTS, JUST LIKE FREEDOM OF SPEECH AND THE RIGHT TO THE DUE PROCESS OF LAW.’’
before the courts. Intellectual property rights are protected in Brazil, not only by the TRIPs agreement but also by Brazil’s Industrial Property Law, Copyright Law and, more importantly, constitution. In fact, IP rights are treated by the constitution as fundamental rights, just like freedom of speech and the right to the due process of law. Hence, any limitations to IP rights must respect the standards imposed by the constitution and may be subject to judicial review.
Another issue not settled at this time is the impact of the provisional measure on non-TRIPS agreement intellectual property, such as the much- debated pipeline patents. It is undisputed that the Brazilian regime of pipeline patents is TRIPS-plus, which means it is outside the scope of the TRIPS agreement. Tus, it seems clear that the provisional measure does not reach the pipeline patents.
oblicks@leonardos.com.br
rasmaior@leonardos.com.br
www.worldipreview.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76