20 March 2024

The Exchange Of Public And Private In The Patent System

Leão Advogados Associados


Leão Advogados Associados
One of the central elements that sustain and drive the patent system is the reward given to inventors to temporarily exploit their creations on the market exclusively...
Brazil Intellectual Property
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One of the central elements that sustain and drive the patent system is the reward given to inventors to temporarily exploit their creations on the market exclusively, enabling them to obtain financial returns and competitive gains. Another, just as important, is the public dissemination of inventions, which promotes scientific and technological development for society.

For the State (Public) to grant a right to an inventor (Private), it is required that he/she creates something new, has inventive activity and industrial application; but more than that, it also reveals the details of the invention that is intended to be protected, to the point that a technician in the field can reproduce that creation. This detail is part of the process of obtaining the patent and, after a period of secrecy defined by law, it is accessible to everyone in the patent databases. With this information, it is possible that any scientist or researcher can drink from this source and evolve science; in the same way that, if the patent is filed, extinguished or the protection period expires, society knows how to reproduce that invention and can take advantage of the public domain in which it now finds itself.

However, it is precisely this exchange, which apparently seems so harmonious, that generates important debates. It is undeniable that the patent system is the best system put in place to date to balance the recognition of inventors, stimulate technological progress and reward the effort made. It happens that, often, the scale does not seem to be so centered.

There are situations in which there is insufficient descriptiveness in the wording of the patent, which hinders practical use in research and development in that technological sector. There are anti-competitive practices that are perpetrated by abusing patent rights (patent trollspatent thickets and patent ambush these are examples that can be explored at another time). And there is also discussion about the equation: protection time x technological sector x expected return.

Today, the patent system provides 20 years of protection for invention patents and 15 years for utility models, counting from the patent application. It turns out that this period does not distinguish the field of application and the technological sector of that invention. The question that remains is: is the protection time, financial return and public interest the same if we consider an invention of a new shoe sole, a mechanical solution for agricultural equipment and a medicine? I don't have that answer, but it's a point to be debated to determine whether the exchange between public and private is fair.

Patents are excellent competitive instruments and bring benefits to society as they stimulate the progress of science. Situations of deviations and abuses occur in any segment, the important thing is that there are tools provided by law to prevent such acts. A public debate and, possibly, legislative developments are also important paths, all aimed at establishing an intellectual property system beneficial to all.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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