Newsletter 06 - September 2019


Peter Dirk Siemsen – Part of the history of Intellectual Property in Brazil

Celebrating his 90th birthday on the 20th of this month, lawyer Peter Dirk Siemsen, from Dannemann Siemsen, Bigler & Ipanema Moreira, is a collector of titles and achievements. Founder, along with other benefactors, of the Brazilian Intellectual Property Association  – ABPI, of which he is honorary president, he wrote, with leading authority, the history of intellectual property in Brazil.

Author of a series of articles published on industrial property and technology transfer in Brazil, Peter Dirk Siemsen is co-founder and honorary president of ABPI, a distinguished member and contributor of ABAPI, honorary member and former president of AIPPI and honorary member of FICPI, former vice-president of the ICC Intellectual Property Commission, ICC regional ambassador for Latin America, arbitrator of the WIPO Arbitration and Mediation Center and of CAS (Court of Arbitration of Sports). He is also a member of INTA, GRUR, AIPLA, ITMA, ECTA, Marques, LES, ATRIP, LIDC and the Board of Directors of AmCham/RJ, among countless other institutions.

In the compilation below we bring excerpts from the interview he gave in the winter garden of his home, in the Jardim Botânico neighborhood, on the eve of traveling to AIPPI’s Annual World Congress in London. In the talk, he revealed straightforwardness, wisdom, a steady memory, and good humor when dealing with various topics, such as his first steps in the field of Intellectual Property, the founding of ABPI, the laws sculpted by the military regime and the relationship with the BPTO. And, weaving some ideas about Brazil, Siemsen stated: “Education is the key point of our future”.

First contacts with IP

In 1947 I was in high school and didn’t know what to do about my future. Since almost all my friends were going to study engineering, I thought about doing the same and went to work as an apprentice designer. One day my great-uncle Eduardo Dannemann, who had an office with only five people, asked if I wanted to earn extra money. I accepted and started making patent drawings for the office.

At the end of the year, vacation time, my great-uncle asked if, in my spare time, I could work as a representative with the former DNPI (National Department of Industrial Property). I accepted. I would go to the ministry, copy the process and bring it to the office. When the holidays ended I was hired.

Summoned for military service, I was private in the battalion of guards in São Cristóvão, Rio de Janeiro. When it finished, my great-uncle wanted me to study Chemistry, but I enrolled in Law. I finished my first year of college in Niterói and then transferred to a college in Catete, which belonged to several well-known lawyers. The schedule of classes allowed me to study and work, developing Intellectual Property activity in the office.

In 1952 I passed the Industrial Property Agent exam and the following year I was invited to become a partner of the office.

IP in the 1950s

Theoretically, Brazil, from an early age, was involved in Intellectual Property and followed all developments on the subject. It began with the coming of Dom João VI to Brazil, who issued a Law protecting innovations. In 1833 Brazil had its first Patent Law. In 1875 came the first Trademark Protection Act. In 1883 Brazil was one of the signatories of the Paris Convention.

But in practice, Intellectual Property in Brazil has never worked well. In the 1950s, when I began militating in the area, it was all very time-consuming. The government made little investment to improve the DNPI (National Department of Industrial Property), the BPTO of the time. There were a lot of unchecked processes. Skilled people were missing. There was no career plan in the entity. In fact, not much has changed.

ABPI is born

In 1963, at the AIPPI Congress in Berlin, several Brazilians, including me, representing the office, and the late Carlos Henrique de Carvalho Froes, from the Momsen Leonardos office attended and Paulo Carlos de Oliveira. We had several meetings there, including with Latin Americans, discussing the need to develop Industrial Property in Brazil and our participation in international events. Hence, we decided to found ABPI, an entity linked to AIPPI. At the same time there was a movement, including the participation of Americans, to found an inter-American entity, ASIPI. So we got to have a Brazilian entity and an inter-American entity, of which Brazil also became a member.

When we created ABPI, we intended to attract the industry to work with us, hoping to get the government to pay more attention to this area. So much so that the first presidents of the entity were from the business environment.

Legislation Hastily

Initially, when the Castelo Branco government took office, I warned the Minister of Industry and Commerce of the need for the government to seize the occasion and reform industrial property to modernize it and catch up with the world movement. He promised but did nothing. At the end of the government, they hastily passed legislation, which was a disaster. And it was hard to convince the government that a new revision of the Law was needed. We formed a committee and were working on a modern law when a colleague, a friend of the then DNPI leader, managed to convince him to make another Law, without considering our work. The result was poorly drafted legislation that did not take into account several important aspects of IP. At the time, the government appointed a naval officer who had been my high school colleague to direct the DNPI. I was so upset with all that confusion that I didn’t attend his induction ceremony.

Then, I learned that the government would attend a meeting in Washington to discuss an international intellectual property treaty. I went to my old high school friend who welcomed me with open arms. “Now you come to me, after all this time?”, he said, confirming that he would go to Washington as head of the Brazilian delegation. As he mentioned that he did not have much to bring to the meeting, I handed him some material and also called the president of the German patent office, asking to grant him special attention. Upon the invitation of the German, the DNPI president spent 15 days at the local office studying the matter. The result was that he returned to Brazil with another perspective. A new Industrial Property legislation was created, much better than the previous ones. But it had flaws, such as prohibiting pharmaceutical and food patents. At the time the DNPI was extinguished, which gave rise to the BPTO.

Peace with the BPTO

For a long time understanding with the government was difficult. The government issued a decree ending the industrial property agent profession. We had to remain silent, for as a decree it was unquestionable, and if it became Law it would be irretrievable. We waited for a decade and a half before we could discuss the problem. I negotiated a lot and had to go to Brasília several times. And every time we came to an understanding, either the minister changed or the government changed. And finally, with minister Dornelles, we managed to restore the agent profession.

In 1977, when I assumed the presidency of ABPI, the first thing I did was to negotiate peace with the BPTO, as there was some struggle between the agency and the private sector.

ABPI’s Seminars

At the end of 1977, we had a luncheon with the president of the BPTO and began to develop a greater dialogue. Then, I had the idea to create ABPI’s annual seminar, today an international congress, to discuss intellectual property. There was a lack of general knowledge about the subject. My thesis was that we should not always hold seminars in the same place. That is why we held the event in São Paulo, Rio de Janeiro, Porto Alegre, Recife, Belo Horizonte. The idea was to spread the knowledge of Intellectual Property in Brazil.

After six months of negotiation, the BPTO agreed to jointly hold the event with ABPI. The first one was held in the auditorium of the Hilton Hotel in São Paulo. It was a huge success. Aiming to convince everyone of the importance of the patent system, I invited an inventing friend to give a talk at the event. He was the star of the congress, there was a great impact. After all, he was a Brazilian inventor, who was getting patents in Brazil and abroad. Initially, the people of the BPTO were afraid to participate, because we were in the years of the military regime, but later they were happy with the result and thereafter participated in the events.

Finally, good legislation

The new Industrial Property Law (Law 9.279/96) required a lot of work. In 1991 the government decided on new legislation and made a draft that was a horror. We did detailed work, analyzed each point of the government draft and next to each item we noted comments, critiques, and in another column, we pointed out how it should be. We distributed this material to parliamentarians to understand the issue so that they had at least a basis for discussing the final bill in Congress. All this work has resulted in the current Law, which is very good.

The old and the new BPTO

You can simply read an article written by Carl Buschmann in 1916, then close your eyes and move to 2019: it’s almost the same situation. The BPTO needs a different structure since currently, investment in research, innovation and patentability programs is limited. A career plan is missing. Those who enter must have the opportunity to make a career that gives opportunities and culminates in high positions. Today a patent takes 12, 13 years and when it is granted it is already outdated, while abroad is much faster. There are Brazilian companies that apply for patents abroad and not in Brazil.

The government needs to recognize the importance of the BPTO in the development of the patent system. Recognizing this will consequently encourage research and technological development in the country.

Education is the future

What worries most about Brazil’s future is our pitiful level of education. We will not move forward until we invest materially and intellectually in education. I was in Korea in 1964. It was a more backward country than Brazil, and now it has a much higher technological level. China is an explosion of development. Developed countries like the United States, Germany, France, England, Japan, Korea and now China have invested in Education and Intellectual Property.

And we are here, discussing the marketing of soybeans. As long as we do not change this we will not move forward, this is the fundamental point. Teachers’ payment is a shame. We need to train qualified people to help with development. Education is the key point of our future.