DOCSLIB.ORG

1 Intellectual Property and Standards in Brazil A

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
1 Intellectual Property and Standards in Brazil A Intellectual Property and Standards in Brazil A study prepared on support of the “American Academy of Sciences” study on IP Management and Standard-Setting Processes 1 • Denis Borges Barbosa An introduction ............................................................................................................................ 2 The content of this paper ................................................................................................................ 4 THE BRAZILIAN ENVIRONMENT .................................................................................................................. 4 Policies and practices of major domestic SDOs.............................................................................. 4 Recent evolution of national institutions....................................................................................... 6 National participation in international/multilateral SDOs ....................................................................... 6 Evolution of public purchase system ...................................................................................................... 6 Effects of standard setting in Brazilian Public Contracting ................................................................. 8 Open Standards as a policy option ................................................................................................... 9 TBT concerns related to IPR ................................................................................................................. 10 Evolution of the patent system ............................................................................................................ 11 The Brazilian patent office as a source of problems ........................................................................ 13 The INPI role in screening technology and other IP contracts ............................................................... 16 The effects sought through the registration ................................................................................... 17 The tax screening role ................................................................................................................... 19 Nature of the tax and remittance screening role ............................................................................ 19 INPI procedure .............................................................................................................................. 20 Refusal of registration ............................................................................................................. 20 Limited effects from registration.............................................................................................. 20 Full effects from registration.................................................................................................... 20 No industrial policy to be enforced .......................................................................................... 21 Evaluation of competition-related provisions ........................................................................... 21 Screening of provisions deemed otherwise not in conformity with law ..................................... 22 Effects of registration .................................................................................................................... 22 Even without registration contracts are valid and enforceable .................................................. 23 The tax and remittance effects are contingent to the registration terms ................................... 26 INPI registration does not change the agreement as executed between the parties .................. 29 The Private sector feeling about the INPI role in screening contracts .............................................. 30 Patent Office role in standard-setting .................................................................................................. 33 Local Antitrust Treatment of standards developed internationally or generated locally ............... 33 The Brazilian competition structure ............................................................................................... 34 Which criteria CADE should be expect to employ in assessing standards covered by patent pools ... 34 The patent pool cases analysed by the Brazilian Antitrust Authorities ............................................. 38 The Videolar case .................................................................................................................... 38 The Gradiente Case ................................................................................................................. 39 The One Red Case ................................................................................................................... 39 The Tacographs case ............................................................................................................... 40 Hold-up and transferability of obligations in standard setting ..................................................... 42 A case study: when Brazil failed to set a 100% national standard ................................................ 42 1 LL.B, LL.M., LL.M., J.S.D. Professor at the Public Policies Program (PPED) of the Institute of Economics of Federal University of Rio de Janeiro and at the Academy of Intellectual Property and Innovation of the Brazilian Patent and Trademark Office. Some aspects of this research had the contribution of Charlene de Ávila Plaza, Fabiola Zanetti and Denise Freitas Silva. 1 As a need for a standard developed ..................................................................................................... 43 Social policies to be asserted ......................................................................................................... 43 The “technology” argument won the day ....................................................................................... 44 Technological development and the tropicalization of the Japanese standard................................. 45 IMPLICATIONS FOR US INTERESTS ............................................................................................................. 46 Some final remarks........................................................................................................................ 48 Bibliography .............................................................................................................................. 48 An introduction At the moment we write this paper, there is no Federal public policy 2 in Brazil dealing with the relations of the Intellectual Property system and Standard-Setting Processes 3. This fact will condition our analytical perspective: it is not possible to describe the strategies and methods utilized by the Brazilian Government to care for such relevant theme, but just to sketch the extent and character of the problem that would be the target of such policies, if they were to be created and applied. Why Brazilian Government is so careless of this relevant problem, whereas other emerging economies have dedicated significant domestic and International efforts to conduct their own policies the same issue? Simple disregard as to the importance of IP and standard-setting procedures is certainly not the cause. Although lacking as yet a uniform Intellectual Property Policy 4, the Brazilian Federal Government has been striving to create and enforce a coherent Innovation and Development strategy 5 and standard setting is a relevant portion of this drive 6. Lack of institutional opportunity for enforcing any integrated policies is also not the cause. The Brazilian Standard-Setting authority (Inmetro) and the Patent and Trademark Office (INPI) are sister agencies belonging to the same 2 We take as an example of such policy the ANSI. Procedures for the Development and Coordination of American National Standards. New York: ANSI, 1987. 3 There were no published policies or regulations on this matter. To confirm the inexistence of such policies, even on an elaborative stage, the author consulted personally with the Deputy-Minister of Science and Technology, the Secretary of the Interdepartmental Steering Group on Intellectual Property (GIPI) and the Head of the Intellectual Property Section of the Ministry of Foreign Affairs. 4 On the Brazilian interdepartmental rivalry and conflicting policies in some areas of Intellectual Property and Innovation, as biotechnology, agrochemicals and health. See BARBOSA, D. B.. Patents and the Emerging Markets of Latin America – Brazil, in ABBOTT, F., CORREA, C., DRAHOS, P. Emerging Markets and the World Patent Order: Rules for an Altered Landscape, ANU e Press, 2012. A preliminary version of this paper may be found at: http://www.denisbarbosa.addr.com/arquivos/novidades/tallahassee3.pdf. 5 See OECD (2006b), OECD Economic Surveys – Brazil, 2006/08, OECD, Paris; and Shaver, Lea Bishop, Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development. ACCESS TO KNOWLEDGE IN BRAZIL: NEW RESEARCH ON INTELLECTUAL PROPERTY, INNOVATION AND DEVELOPMENT, Lea Shaver, ed., Bloomsbury Academic, Bloomsbury Publishing, UK, USA, 2010; Hofstra Univ. Legal Studies Research Paper no. 10-49. Available at SSRN: http://ssrn.com/abstract=1729837. 6 MONTEIRO, C. D. M.; TORRES, A. A.. Brazil, OECD Standard Setting 2010, found at http://www.oecd.org/regreform/liberalisationandcompetitioninterventioninregulatedsectors/47381304.pdf.Visited May
Load more

Recommended publications
  • Voluntary Obligation and Contract
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2019 Voluntary Obligation and Contract Aditi Bagchi Fordham University Law School, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Contracts Commons Recommended Citation Aditi Bagchi, Voluntary Obligation and Contract, 20 Theoretical Inquiries in L. 433 (2019) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/994 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. 433 Voluntary Obligation and Contract Aditi Bagchi* Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others. To the extent that our choices in contract do not reflect our individual moral constitutions — our values, virtues, vices, the set of reasons we reject and the set of reasons we endorse — we are not justified in regulating contracts reluctantly. Contracts are entitled to the privilege of liberal regulatory deference only to the extent that they are the work product of individual autonomy.
    [Show full text]
  • The Genius of Roman Law from a Law and Economics Perspective
    THE GENIUS OF ROMAN LAW FROM A LAW AND ECONOMICS PERSPECTIVE By Juan Javier del Granado 1. What makes Roman law so admirable? 2. Asymmetric information and numerus clausus in Roman private law 2.1 Roman law of property 2.1.1 Clearly defined private domains 2.1.2 Private management of resources 2.2 Roman law of obligations 2.2.1 Private choices to co-operate 2.2.2 Private choices to co-operate without stipulating all eventualities 2.2.3 Private co-operation within extra-contractual relationships 2.2.4 Private co-operation between strangers 2.3 Roman law of commerce and finance 3. Private self-help in Roman law procedure 4. Roman legal scholarship in the restatement of civil law along the lines of law and economics 1. What makes Roman law so admirable? Law and economics aids us in understanding why Roman law is still worthy of admiration and emulation, what constitutes the “genius” of Roman law. For purposes of this paper, “Roman law” means the legal system of the Roman classical period, from about 300 B.C. to about 300 A.D. I will not attempt the tiresome job of being or trying to be a legal historian in this paper. In the manner of German pandect science, let us stipulate that I may arbitrarily choose certain parts of Roman law as being especially noteworthy to the design of an ideal private law system. This paper discusses legal scholarship from the ius commune. It will also discuss a few Greek philosophical ideas which I believe are important in the Roman legal system.
    [Show full text]
  • Force Majeure and Common Law Defenses | a National Survey | Shook, Hardy & Bacon
    2020 — Force Majeure SHOOK SHB.COM and Common Law Defenses A National Survey APRIL 2020 — Force Majeure and Common Law Defenses A National Survey Contractual force majeure provisions allocate risk of nonperformance due to events beyond the parties’ control. The occurrence of a force majeure event is akin to an affirmative defense to one’s obligations. This survey identifies issues to consider in light of controlling state law. Then we summarize the relevant law of the 50 states and the District of Columbia. 2020 — Shook Force Majeure Amy Cho Thomas J. Partner Dammrich, II 312.704.7744 Partner Task Force [email protected] 312.704.7721 [email protected] Bill Martucci Lynn Murray Dave Schoenfeld Tom Sullivan Norma Bennett Partner Partner Partner Partner Of Counsel 202.639.5640 312.704.7766 312.704.7723 215.575.3130 713.546.5649 [email protected] [email protected] [email protected] [email protected] [email protected] SHOOK SHB.COM Melissa Sonali Jeanne Janchar Kali Backer Erin Bolden Nott Davis Gunawardhana Of Counsel Associate Associate Of Counsel Of Counsel 816.559.2170 303.285.5303 312.704.7716 617.531.1673 202.639.5643 [email protected] [email protected] [email protected] [email protected] [email protected] John Constance Bria Davis Erika Dirk Emily Pedersen Lischen Reeves Associate Associate Associate Associate Associate 816.559.2017 816.559.0397 312.704.7768 816.559.2662 816.559.2056 [email protected] [email protected] [email protected] [email protected] [email protected] Katelyn Romeo Jon Studer Ever Tápia Matt Williams Associate Associate Vergara Associate 215.575.3114 312.704.7736 Associate 415.544.1932 [email protected] [email protected] 816.559.2946 [email protected] [email protected] ATLANTA | BOSTON | CHICAGO | DENVER | HOUSTON | KANSAS CITY | LONDON | LOS ANGELES MIAMI | ORANGE COUNTY | PHILADELPHIA | SAN FRANCISCO | SEATTLE | TAMPA | WASHINGTON, D.C.
    [Show full text]
  • Obligations As Property I Introduction
    2011 Obligations as Property 677 OBLIGATIONS AS PROPERTY JOHN TARRANT* I INTRODUCTION It is often asserted that there is a clear and important distinction between property and obligations and that these concepts are mutually exclusive. The idea is based on the proposition that rights in rem are property rights and rights in personam, that correlate with obligations, are personal rights and not property rights. A recent expression of this idea is reflected in Worthington’s view that equity has effectively eliminated the divide between property and obligation.1 Worthington proceeds on the basis that there is a ‘general assumption that there is a sharp doctrinal and functional divide between property and obligation’.2 A significant difficulty with this approach is that it is irreconcilable with the case law indicating that a debt, which is a common personal right or right in personam, is a property right.3 One suggestion put forward to reconcile this obvious difficulty is the proposition that property is used in private law in two senses: a narrow sense limited to rights in rem, and a broader sense to include some, or perhaps all, rights in personam.4 This approach suggests that private law uses two fundamentally different definitions of property within a single legal system. That is equally problematic. The author rejects this approach and challenges a fundamental principle that the approach is built on: that only rights in rem are true property rights. The author argues that the place of property and obligation * SJD, LLM, MDefStud, LLB (Hons), BSc (Grad), BCom, BA, GradDipMilLaw, GradDipEd, GradDipTax, DipFinMangt, GDipAppFin, GradCertLawTchg, GCJ.
    [Show full text]
  • Causa and Consideration in the Law of Contracts
    YALE LAW JOURNAL Vol. XXVIII MAY, 1919 No. 7 CAUSA AND CONSIDERATION IN THE LAW OF CONTRACTS ENmST G. LORFNZEN Professor of Law, Yale University Although the common law is the general basis of the law of this country and of the law of the British Empire, and has therefore a claim to the principal interest and attention of the Anglo-American lawyer, he cannot afford wholly to neglect the study of the civil law. Not only are the commercial relations with foreign countries increasing from year to year, but a considerable portion of the territory of the United States and its possessions and of the British Empire are gov- erned wholly or in part by the doctrines of the civil law. One of the most fundamental differences between the common law and the civil law which is of special importance from the standpoint of business is presented by the question of causa and consideration in the law of contracts. In Louisiana,' in the Canal Zone,2 in Porto Rico,8 in the Philippine Islands' and in certain parts of the British Empire a contract is valid if it has a sufficient causa. The meaning of the term causa and its relation to the Anglo-American doctrine of consideration has thus been mooted a great deal in the courts-particularly in those of South Africa. Through the influence of Chief Justice de Villiers of the Supreme Court of the colony of the Cape of Good Hope the doctrine became finally established in that colony that the two requirements were in 'Civil Code, Arts.
    [Show full text]
  • Data Ownership—A Property Rights Approach from a European Perspective
    Journal of Civil Law Studies Volume 11 Number 2 Article 5 12-31-2018 Data Ownership—A Property Rights Approach from a European Perspective Andreas Boerding Nicolai Culik Christian Doepke Thomas Hoeren Tim Juelicher See next page for additional authors Follow this and additional works at: https://digitalcommons.law.lsu.edu/jcls Part of the Civil Law Commons Repository Citation Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren, Tim Juelicher, Charlotte Roettgen, and Max V. Schoenfeld, Data Ownership—A Property Rights Approach from a European Perspective, 11 J. Civ. L. Stud. (2018) Available at: https://digitalcommons.law.lsu.edu/jcls/vol11/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Journal of Civil Law Studies by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Data Ownership—A Property Rights Approach from a European Perspective Authors Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren, Tim Juelicher, Charlotte Roettgen, and Max V. Schoenfeld This article is available in Journal of Civil Law Studies: https://digitalcommons.law.lsu.edu/jcls/vol11/iss2/5 DATA OWNERSHIP—A PROPERTY RIGHTS APPROACH FROM A EUROPEAN PERSPECTIVE Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren, Tim Juelicher, Charlotte Roettgen, Max v. Schoenfeld∗ I. Why Data Ownership Matters ................................................. 325 II. European Framework ............................................................. 326 A. European Primary Law ...................................................... 326 1. Charter of Fundamental Rights of the European Union and European Convention on Human Rights ................. 327 2. Digital Single Market .....................................................
    [Show full text]
  • The Law of Civil Responsibility DRAFT
    Introduction to the Laws of Kurdistan, Iraq Working Paper Series The Law of Civil Responsibility DRAFT Iraq Legal Education Initiative (ILEI) American University of Iraq, Sulaimani Stanford Law School Kirkuk Main Road Crown Quadrangle Raparin 559 Nathan Abbott Way Sulaimani, Iraq Stanford, CA 94305-8610 www.auis.ed.iq www.law.stanford.edu CIVIL RESPONSIBILITY 1. INTRODUCTORY CONCEPTS Picture a busy neighborhood full of restaurants and shops on a Saturday night. Hundreds of people walk along the sidewalks, and many cars fill the streets. Ibrahim is driving one of these cars home from work. Ibrahim is a safe driver. He is not driving fast or talking on his mobile phone, and he is watching for other cars and people. But as Ibrahim continues driving down the street, he has a heart attack. His car swerves off of the street and onto the sidewalk. As the people on the sidewalk jump out of the way, Ibrahim’s car continues moving until it crashes into a popular café. Ibrahim’s car is badly damaged and so is the café. The car has destroyed several tables and left a large hole in the front wall. The café owner thinks the repairs will require the café to close for several weeks. A few people in the café also have injuries from diving out of the way of the car. Who should pay to repair the café and to send its customers to the hospital? The law of civil responsibility, found in the Iraqi Civil Code, governs obligations among parties that result from their actions.
    [Show full text]
  • XOBLICON Course Title: Law on Obligations and Contracts Instructors
    Course Name: XOBLICON Course Title: Law On Obligations And Contracts Instructors: Abrea, Akia, Cayabyab, De Vota, Langit, Lopez, Reyes, Salonga and Umadhay Required Text: The Law on Obligations and Contract, latest edition, De Leon, Hector S. Course Description: This course gives the student an understanding of the legal concepts, theories and rules governing the law of obligations and contracts which are encountered by students depending on their major of specialization. Application of these concepts to practical problems and definition and identification of theories for board examination purposes for accounting majors. And together with other areas for other courses which are to be applied in their work. It focuses on discussion and definition of the nature, sources, kinds, and extinguishments of an obligations and contracts including defective contracts and other miscellaneous topics relevant to the Law of Obligations and Contracts and other related business law subjects. At the end of the course, the students are expected to understand and define legal concepts, theories and rules, procedures in entering, demanding and fulfilling an obligation and likewise to have competence in preparation, interpretation, understanding and presentation of obligations and contracts. Topic Outline: Estimated No of Hours 1. General legal concepts of enforceable rights and obligations 3.00 2. Types of Laws 4.00 Constitutional laws Administrative laws and regulations Criminal laws Civil laws 3. Sources of obligations and their concepts 5.00 Law Cotracts Quasi-contracts Delicts Quasi-delicts 4. National legal system 5.00 The system of courts and the administration of justice Case laws and/or legislation and regulations affecting enterprises Precedents and statutory interpretations 5.
    [Show full text]
  • Three Pictures of Contract: Duty, Power, and Compound Rule
    THREE PICTURES OF CONTRACT: DUTY, POWER, AND COMPOUND RULE GREGORY KLASS* There is a fundamental divide among theories of contract law between those that picture contract as a power and those that picture it as a duty. On the power- conferring picture, contracting is a sort of legislative act in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law places duties on persons entering into agreements for consideration, whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing—a question that should lie at the center of contract theory. This Article argues that legal powers have two characteristic features. First, there is an expectation that actors will satisfy the rules with the purpose of achieving the associated legal consequences. Second, the legal rules are designed to facilitate such uses. A law might exhibit these features in either of two ways, which define two types of legal powers. Many laws that create legal powers employ conditions of legal validity, such as legal formalities, designed to guarantee the actor’s legal pur- pose. The presence of such validity conditions is strong evidence that the law’s sole function is to create a legal power, and I suggest reserving the term “power conferring” for such laws. Other laws anticipate and enable their purposive use without conditioning an act’s legal consequences on the actor’s legal purpose. The structure of such laws suggests that they function both to create powers and to impose duties.
    [Show full text]
  • 3585340 14 Conflicts Between Lawyers Mcguirewoods LLP and Their Clients: Part II T
    Conflicts Between Lawyers McGuireWoods LLP and Their Clients: Part II T. Spahn (8/6/15) Hypotheticals and Analyses ABA Master CONFLICTS BETWEEN LAWYERS AND THEIR CLIENTS PART II Hypotheticals and Analyses Thomas E. Spahn McGuireWoods LLP These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2015 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 3585340_14 Conflicts Between Lawyers McGuireWoods LLP and Their Clients: Part II T. Spahn (8/6/15) Hypotheticals and Analyses ABA Master TABLE OF CONTENTS Hypo No. Description Page Practice Limitations: Partnership and Employment Agreements 1 Law Firm Non-Compete Arrangements ..................................................... 1 2 Other Law Firm Restrictions ....................................................................... 3 3 Restrictions in Connection with a Law Firm's Retirement Program ....... 17 4 Law Firms' Remedies Against Withdrawing Lawyers .............................. 22 5 In-House Lawyers' Practice Limitations .................................................... 48 Practice Limitations: Settlements 6 Litigation Settlements: General Rule ........................................................ 52 7 Litigation Settlements: Other Possible Provisions .................................
    [Show full text]
  • 6 General Rules of the Law of Obligations
    6 GENERAL RULES OF THE LAW OF OBLIGATIONS 1 GENERAL Book Three of the Civil Code is divided into two sections: general rules of the law of obligations and general rules of contract law. The rst section is divided into six chapters: concepts of and parties to an obligation, performance of obl igation, securing of performance of obligation, change of parties, liability for the breach of an obligation, and the termination of an obligation. Individual types of obligation are provided in Book Four, which is in Part Two of the Code enacted one year after Part One in 1996. Book Four not only contains obligations arising from various types of contracts, but also obligations arising out of tort and unjust enrichment. This structure is in line with the tradition of Russian civil law under the in\ u- ence of the Pandekten system. The draft Civil Code of the Russian Empire of 1905 was arranged in this way. 2 PERFORMANCE OF OBLIGATION 1) Manner of Performance The general rule is that an obligation should be performed in an adequate man- ner in accordance with the terms of the obligation and the requirements of the law and other legal acts, and in their absence, in accordance with the business custom (obychai delovogo oborota) or other normally applicable requirements (Art.309). Inadequate performance is not acknowledged as performance: The Allied Colleges of Advocates of St.Petersburg brought an action in court against an open joint stock company Stroimashin for the payment of 42,500,000 roubles for legal services provided to the latter.
    [Show full text]
  • Some Critical Remarks on the Roman Law of Obligations 1
    SOME CRITICAL REMARKS ON THE ROMAN LAW OF OBLIGATIONS 1. — Everybody knows that classical Roman lawyers did not develop a systematic theory of what we call ‘contract’ today. Indeed, in modern European continental law, ‘contract’ is a general positive concept, which means the acknowledgement of a transaction between two or several persons, producing legal effects, the wideness of which can be various. From the Code Napoléon (art. 1101) to the German BGB (1st book, 3rd section), from the Swiss legislation (Civil Code, art. 7, referring to Obligations Code) down to the Italian Codice Civile of 1942 (art. 1321), everywhere the concept of contract is identified with a bilateral act. This act gives rise to an obligatory bond or any other legal one, or even to a bond on which may depend the settlement, the modification and the extinction of a juridical or at least of a patrimonial relation. Besides, this is a concept, which obtains also in the field of English law, although every concept elaborated by Anglo-American legal science always seems more closely connected with the ratio decidendi of a single judgement passed, according to the spirit of case-law jurisprudence. Freedom of agreement, then, is a rule both in English and in continental law. Roman law, on the contrary, recognizes only some individual types of contracts, so that contract in a general sense never means, of course, anything but an abstract conception. Moreover, by the name of contractus, classical jurists mean exclusively obligatory contracts, that is * This is the general outline of a lecture Ι have given (with a seminar) as a visiting professor both at the Hebrew University of Jerusalem and at the Law Faculty of Tel Aviv, being a guest of the Israeli Government, on April 19th and 26th 1977.
    [Show full text]