Brazil leaves patents in the hands of the “gringos” – and that could be a problem

RIO DE JANEIRO, BRAZIL – Data from the National Institute of Industrial Property (INPI) show how foreign countries, with the leadership of the United States, dominate patent registrations in the national territory. Of all the 26,921 requests for property titles in Brazil in 2021, only 19% were from Brazilian companies or citizens. According to the most recent data available in the first two months of 2022, only 17% of 3,833 patent applications came from Brazil.

Filing a patent is a protocol of proof, before the State, of the right over a particular creation or innovative solution in the territory. Patents are granted for inventions with industrial and economic relevance, which in practice means that the product or process can be used or produced in a specific industry. In the long run, the lapse of patents in Brazil (and for Brazilian industries) impacts the country’s economy.

For attorney Franklin Gomes, a partner at FG Intellectual Property, Brazilian companies do not have the culture of registering their innovations. A specialist in trademarks and patents, Gomes agrees that there is a direct correlation between the largest economies and the countries with the highest number of patents.

“We (Brazil) are recognized as major contributors to innovation worldwide, we have researchers participating in studies in all areas of knowledge, but we do not have the culture of protecting all this creation and innovation and, thus, we fail to transform innovations into intellectual capital that could be measured, exploited and would become a competitive differential for the company and for the country itself (…) The United States, China, Germany, and Japan are the countries that have filed the most patents in the world, and they are the same countries with the largest economies,” he evaluates.

Kone Cesário, a law professor at UFRJ, explains that most of the economic development and innovation indexes among countries contemplate, among other metrics, the number of patents. Therefore, Brazil is still lagging behind the major municipal powers. “A notorious fact is that nations with more innovation records also usually occupy leading positions in global rankings of the World Bank. It can be said that an economically developed nation also has a large number of patents, for various stimuli, and that patents generate royalties and can be a form of foreign exchange income for a country,” assesses Kone.

According to the INPI report, in the ranking of Brazilian residents, Petrobras and the Federal Universities of Campina Grande, Paraíba, and Minas Gerais, lead the number of invention patents in the first year of the pandemic. Among the non-residents are the companies Huawei, Qualcomm, Dow Chemical, and Ethicon lead. Some prominent areas are organic chemistry, telecommunications, pharmaceuticals, and medical technology.

TYPES OF PATENTS

Patents function as temporary titles of ownership over an invention or utility model. The State formalizes this title, guaranteeing the authors (natural or legal person) the right to prevent third parties from reproducing, selling, or importing the production without consent. Patents of Invention (IP) refer to a new product or process, such as the invention of medicines or a new way to manufacture these medicines. Utility Model (MU) patents, on the other hand, refer to improvements in the use or manufacture of objects, such as furniture, utensils, and tools.

In Brazil, after a patent has been granted, there is also the possibility of improving the invention, and the Certificate of Addition of Invention (CAI) is required. Invention patents are valid for 20 years, while utility models guarantee exclusivity for 15 years, as from the regularization of the request at the INPI, the agency responsible.

Although there is no “world patent” because there are different rules in each country, there is a way to facilitate the work of patent filing in several nations, such as using the PCT (Patent Cooperation Treaty) system, an international treaty with 152 member countries. The PCT, in general terms, speeds up the regularization of patents in the different territories, dealing directly with the responsible bodies in each country. On the other hand, Brazil does not yet use this system as recurrently as the world’s major economic powers.

Still, concerning the period January-February 2022, among the countries that filed invention patent applications, 76% were via the PCT. The exception was Brazil, with only 3.6% of these applications via the PCT. The high cost of international protection is among the factors that discourage inventors from extending protection in several countries.

In the accumulated period January-December 2021, 86 countries applied for patent protection in Brazil. Among the countries that filed the most invention patent applications were the United States (28%), Germany (7%), China, Switzerland, and Japan (5% each). Among the deposits of utility models, Brazilian resident applicants were responsible for 98% of the applications. “There is a direct relationship between innovation and protection of this innovation through patents and the position of countries in terms of economic power. The largest economies in the world protect their inventions and explore this intellectual capital,” says Franklin Gomes.

With information from Veja