Edition: 177 | Month: March | April | Year: 2022
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Editor note’s
By Laetitia d’Hanens and Maitê Cecilia Fabbri Moro
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The invention of the happiness machine and the unhapinness of its inventor – the paradox of the patent system
By Nuno Pires de Carvalho
The patent system is plagued with a paradox that greatly undermines it. In effect, society adopts the patent system so as to persuade inventors to devote efforts, time and resources to creating new solutions to everyday problems. But when those inventions are of a great social value, the same society is prone to attack the inventors who applied for patents and to diminish the rights that result from those patents. The paradox is illustrated with the fable of the happiness machine: an invention that would give human beings what they most want. But, paradoxically, society attacks both the inventor and his patent, and prevents him from being happy. After describing the fable and its economic and legal dimensions, the article ends with a brief analysis of some concrete cases that confirm the reality behind the fable.
Keywords: Invention. Patent. Social value. TRIPS Agreement. Pharmaceutical patents. Exceptions. Limitations.
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Patents and arbitration
By Jacques Labrunie and Camila Avi Tormin
Taking into consideration the twenty-five years since the promulgation of both Arbitration and Industrial Property Laws, this article aims to evaluate, after a brief introduction on the Brazilian patent system and the main issues discussed in lawsuits, which disputes could be resolved through an arbitration procedure, considering some challenges and the main advantages of this alternative route of dispute resolution.
Keywords: Arbitration. Patents. Nullity of patent. Patent infringement. Contractual disputes involving patents.
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The cultivar protection law and the exclusive right limitations
By Daniel Gonçalves Delatorre
This article aims to analyze the rights holder limitations foreseen in the Brazilian System for the Protection of Cultivars, as well as in the national legal system from its structures, functions and effects. The question of the economic viability of limitations on the right to cultivate and its use as an instrument of social, economic and environmental development was outlined. In addition to outlining the content, scope and influence of the UPOV Convention, the article sought to address objective limitations based on its functions, mandatory public and private interest limitations, and abuse of a dominant position as a delimitation of the right to intellectual property.
Keywords: Cultivar. Limits to The Protection of Cultivar in Brazil. Objective Limitations. Compulsory limitations. Intellectual property.
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General theory of legal entity name
By Luiz Carlos Marques Filho
The article assesses the compatibility between the legal rules for the formation of a business name in Brazilian law and the doctrinal concept of business name found in courses and manuals on business law, in order to solve some theorical problems. The state of the art reveals the difficulty of Brazilian law, even today (i) to determine the concept and legal nature of the business name; (ii) distinguish a business name from other signs used in the market, such as the brand, the insignia, the title of the establishment, etc.; (iii) discipline the protection of the corporate name; and (iv) resolve any conflicts between the right to exclusivity of the business name and the rights to other signs. The hypothesis is that the concept of corporate name which Brazilian jurists uses today is flawed and lacks revision.
Keywords: Company name. Title of establishment. Trade name. Protection from competition. Business registration.
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Parecer
Dialogues between consumer law and intellectual property: the essential patents case
By Heloisa Carpena
The article focuses on the intersection of consumer law and intelectual property by reporting a conflict raised between a manufacturer and the owner of an essential patent, who has a duty to license its technology on fair, reasonable, and nondiscriminatory (FRAND) terms. The alleged refusal of the owner to license can harm consumers interests. The latter benefit from increased price competition when there are multiple sellers of compatible products, thus, their interests should be appropriately considered in the conflict. The study addresses this issue by proposing a “dialogue” that allows the application of consumers protection rules in intelectual property cases, offering a tool to interpret the good-faith principle in licensing negotiations.
Keywords: Consumer law. Intelectual property. Competition. “Dialogue des sources” theory. Essential patents. Licensing FRAND terms. Goodfaith principle.
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Jurisprudência Comentada
Acórdão do Tribunal Geral da União Europeia de 14 de julho de 2021 – Processo T‑488/20
By Karin Grau-Kuntz – Meissner Bolte, Alemanha