ABPI – Brazilian Association of Intellectual Property is a non-profit entity, founded in 1963, and which has, among its statutory objectives, the improvement of the intellectual property protection environment in our country.
Among the main concerns of the ABPI, is the insufficient budgetary allocation of the INPI – National Institute of Industrial Property, which, for decades, has not received from the Federal Government the minimally adequate resources to carry out its relevant activities of examination and granting of patent rights. and brands, a fundamental activity in the national innovation effort. Proof of this is the excessive time limit for analyzing patent applications, which far exceeds the minimally acceptable time.
In 2021, the scenario took on new colors with the declaration of unconstitutionality, by the Federal Supreme Court – STF, of the sole paragraph of art. 40 of the Intellectual Property Law (ADI 5529). The rule in question offered minimal protection to the patent applicant in view of the notorious administrative delay of the INPI.
In this context, a state of nonconformity was institutionalized, which was even recognized in the judgment of the aforementioned ADI 5529, reported by Minister Dias Toffoli. At the origin of this non-compliance lies the reallocation, in favor of the National Treasury, of the revenue from the execution of INPI services, which is not destined for the autarchy.
This fact calls attention, since the amount collected by the activities of the INPI is not a fee or tribute, but a simple price paid by the user of the service, as unanimously decided by the Plenary of the STF in 2018, in ADI 3,863. This understanding brings with it some questions: if the collection does not have a tax nature, what would authorize the Federal Union not to pass on the amounts obtained by it to the INPI? Would there be any tolerable justification for a price charged by the INPI not to be reverted to it, but intended for different purposes?
Faced with this precarious budget scenario, which limits and negatively affects the performance of the INPI, at the end of 2021, the Brazilian Intellectual Property Association (ABPI) entered the Federal Court of Rio de Janeiro with a Public Civil Action of a structuring nature (proc. nº 5095710-55.2021.4.02.5101/RJ), seeking to bring the INPI to the state of compliance. With this action, ABPI works cooperatively with public authorities, in favor of better conditions for national technological development. In general terms, the aim is to create a plan of goals and measures, to be accomplished in a staggered manner. ABPI is represented in the case by lawyers Gustavo Osna and Marcelo Mazzola, two specialists in the field.
In its defense, the Federal Union claimed, in a generic way, that the attempt to expand the limits for INPI expenditures up to the value of its collection would come up against the Fiscal Responsibility Law. The INPI initially argued that the current funding of the autarchy would be sufficient (and that any delay would result from the inherent complexity of the matter and its procedural rites). However, as a result, including due to the recent budget cuts imposed by the Federal Union, the representatives of the INPI themselves recognized in the records that:
“(…) the amounts collected by the federal authority totaled, in 2021, BRL 432.2 million as revenue from the provision of services and BRL 82.4 million as equity income, which went to the single National Treasury account. Of these amounts, approximately BRL 67.2 million were allocated to the INPI in 2021 for discretionary expenses, which corresponded to just over 10% of the amounts that the INPI collected in the same year, showing a disproportion between the amounts collected and those that were reverted to the municipality”.
On 04.12.2022, the Court of the 31st Federal Court of Rio de Janeiro, after weighing all the interests at stake, upheld the author’s requests, for:
(i) CONDEMN the INPI to:
submit, within 90 (ninety) days, an updated and detailed diagnostic report on the functioning of the autarchy, identifying points of ineffectiveness and inefficiency, based on technical and comparative parameters, as well as material, budgetary and functional needs to improve its activities;
present, within the same period of 90 (ninety) days, an exposition of the measures to be progressively adopted to improve its activities and a detailed planning for its adoption, as well as its respective budget forecast. The planning should cover the years 2022, 2023 and 2024, and be specific as to the actions to be carried out, the means of execution, deadlines and funding sources, and will be the subject of analysis and approval in the sentence compliance phase, in the form of reasoning; and
implement the restructuring plan referred to in item “b”, after approval in this process, presenting reports demonstrating the adoption of the measures carried out periodically to the Court, allowing the assessment of its sufficiency and adequacy;
and (ii) CONDEMN the FEDERAL UNION to allocate to the INPI the necessary revenues for the implementation of the plan referred to in item “b”, carrying out its transfer in compliance with the respective schedule approved in the sentence compliance phase.
In view of the urgency of the matter and aiming to start the provisional execution phase of the judgment, the judge granted the anticipation of the relief in the sentence itself, determining the summons to the INPI to comply with items “a” and “b”, within the deadlines established therein. . There is appeal.
ABPI will continue to fulfill its statutory objective of contributing to the continuous improvement of the Brazilian intellectual property protection system, the only way to stimulate the innovation that is essential for the social and economic development of our country.
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