Industry 4.0 and Intellectual Property in Brazil

The great technological advances of the last few decades, added to the world communication revolution with the popularisation of the internet, have resulted in an increase in data flows and the immediate transmission of information on a global scale. This scenario has allowed data to be elevated to the category of an essential economic asset, so that digitalisation has gained increasingly more space on the industrial development agenda.

Industry is extremely relevant in the Brazilian economic scenario. It currently represents 20.9% of national GDP, accounts for 70.1% of exports of goods and services, in addition to representing 72.2% of business investment in research and development (R&D) and 33% of federal taxes, not including social security revenues[1].

For every real produced in Industry, it is estimated that 2.4 reais are generated in the economy as a whole, a very significant number when compared to other sectors such as agriculture (1.66 reais) and trade/services (1.49 reais)[2]. The predominant role of Industry for the development of the country can hence be seen.

The incorporation of digitalisation into industrial activity has culminated in the concept of Industry 4.0, in reference to the 4th Industrial Revolution: when already existing communication technologies are integrated into equipment that, until then, had been working individually. The interconnection of objects with the Internet, endowed with the ability to gather and transmit data, is called the Internet of Things (IoT).

The IoT is one of the main technologies that drive the so-called Revolution 4.0, alongside Big Data[3], cloud computing[4], advanced robotics and artificial intelligence, without prejudice to new materials and manufacturing technologies. And behind these Intelligent Industries, in which machines and inputs “talk” during industrial operations in an integrated manner – often also autonomous[5] – intellectual property rights play an important role for the positive impacts on productivity and on new models of business promoted by Industry 4.0 to reach high levels.

Brazilian industry faces a double challenge with Revolution 4.0: on the one hand, the search for the incorporation and development of these technologies, and on the other, doing so with relative agility, fighting the competitiveness gap between the country and its main international competitors[6].

To this end, it must be recognised that the boundaries between technology and law are increasingly flexible. The incorporation of digitalisation into industrial activity demonstrates the importance of mutual cooperation between its various institutional actors, namely: Industry, the user, the Judiciary, the private legal profession and the Brazilian Patent and Trademark Office (BPTO) [National Institute of Industrial Property (INPI)].

Since it is responsible for granting industrial property rights, the BPTO will face major challenges in the context of Industry 4.0. The intellectual property system protects investments made in innovation, guaranteeing a temporary privilege over inventions. It is the granting of this exclusive right that allows the innovative agent the possibility of a return on the investment made in the creation, development and marketing of new products and industrial processes[7].

An historical problem – which is finally being solved – concerns the accumulation (commonly called backlog) of patents, in which the delay in examining applications generates legal uncertainty and discourages innovation. This, of course, is not consistent with the logic of promoting industrial development.

Although the backlog still exists, there was an increase of 51.6% in the number of patents granted in 2019 and 66.1% in the first half of 2020. This is a significant increase, an indicator that the BPTO is finally on track to examine patent applications in a reasonable time, in line with international peers.

In terms of technology, it is important to consider that the life cycle of certain products is too short, and it is essential that the agency granting rights respond to market demand in an agile way.

In addition, professionals working in the field must be aware of the possibility of accumulating protections through different intellectual property institutes, since the patent system – designed for the industry of the mid-19th century – will not always provide, on its own, the most appropriate spectrum of protection for innovation.

Without a doubt, there are many discussions on the topic that attract the attention of the actors inserted into the context of a global economy. The most important thing is that an effective commitment to make Brazil more competitive, automated and connected is seen in the current BPTO.

[1] The importance of Industry for Brazil. National Confederatoin of Industry. Profile of Industry in Brazil Portal da Indústria: Estatísticas. Net. 28.10.2020. Available at: <https://www.portaldaindustria.com.br/estatisticas/importancia-da-industria/>. Accessed on 03 November 2020.

[2] Loc. Cit.

[3] Big Data is a concept that has no consensus among experts, but it can be understood in terms of Information Technology (IT) as large sets of data that need to be processed and stored. Big Data, therefore, is the analysis and interpretation of a large variety of large volumes of data, from specific solutions that allow the IT professional to work with unstructured data at great speed. Cf. Canal Tech. O que é Big Data. Net. Available at: <https://canaltech.com.br/big-data/o-que-e-big-data/>. Accessed on 02 November 2020.

[4] Cloud computing is the possibility of accessing files and perform different tasks over the internet, through a connection to an online service, making use of tools and saving the work done to access them later from anywhere. Cf. Tecmundo. O que é computação em nuvem? Net. 13 June 2012. Available at: <https://www.tecmundo.com.br/computacao-em-nuvem/738-o-que-e-computacao-em-nuvens-.htm>. Accessed on 04 November 2020.

[5] National Confederation of Industry. Desafios para Indústria 4.0 no Brasil [Challenges for Industry 4.0 in Brazil]. National Confederation of Industry. Brasília: CNI, 2016, page 12.

[6] Ibid. page 17.

[7] JUNGMANN, Diana de Mello. Proteção da criatividade e inovação: entendendo a propriedade intelectual: guia para jornalistas [Protection of creativity and innovation: understanding intellectual property: a guide for journalists] Brasília: IEL, 2010, page 43.

[8] On the topic, an article by Bernardo Marinho and Joaquim Goulart is recommended: Esse é de fato o fim da demora (backlog) do Instituto Nacional de Propriedade Industrial para conceder patentes? [Is this in fact the end of the backlog at the Brazilian Patent and Trademark Office] Net.  27 August 2020. Available at: <https://ids.org.br/esse-e-de-fato-o-fim-da-demora-backlog-do-instituto-nacional-de-propriedade-industrial-para-conceder-patentes/>. Accessed on 04 November 2020.

[9] The authors would like to thank Fabiano Barreto for his valuable contributions on the topic, in a speech given at Webinar Indústria 4.0 and Intellectual Property, organised by the Dannemann Siemsen Institute on 04 November 2020. Available at: <https://ids.org.br/evento/webinar-industria-4-0-e-a-propriedade-intelectual/>. Accessed on 04 November 2020.