by Bruno Lopes Holfinger
December 31, 2005
Even though late in complying with the Treaty on Intellectual Property in Respect of Integrated Circuits (PIO) adopted at Washington on May 26, 1989, Brazilian legislation will finally implement procedures to ensure the intellectual protection of integrated circuits (IC).
The topography of integrated circuits that is the subject of the protection of the Brazilian law consists of a series of related images, constructed or coded through any means or form, that represent the tridimensional configuration of layers that make up the integrated circuit, where each image represents geometric forms or surface arrangements of the integrated circuit at any stage of its conception or production.
This new protection shares concepts with both patent protection and copyright protection because it simultaneously is an abstract device that contains original and non-obvious technical concepts.
According to the Brazilian National Congress, the new regulations are designed to encourage innovation by domestic producers of high technology integrated circuits who might be injured by international competition and the end of the Brazilian market reserve. Additionally, the legislation is designed to adjust local legislation to the rules introduced by the TRIPS treaty-and more specifically, articles 35 to 38 of TRIPS.
The Brazilian legislation is designed to ensure that companies with relatively small integrated circuit manufacturing production can obtain protection and also innovate in order to create and protect their microchips. It should also be pointed out that this law, similar to patents and industrial designs, protects patent applications from other countries, with a deadline for filing such applications assured by international treaty.
A patent issued by the Brazilian Patent and Trademark office stays in effect for 10 years from the initial filing date or date of use (as long as the time between the beginning of exploitation until the filing of the patent application does not exceed two years). The patent permits the owner to stop reproduction, import, sale or distribution of protected technology, except if good faith can be established, thus satisfying the conditions contained in articles 36 and 37 of TRIPS. In order to qualify for protection, the topography must be original-that is, it has to be derived from intellectual creation and must not be something that is common or ordinary to a specialist in the field.
Assignment and Licensing
Once the registration is effective, the patent holder may assign or license the technology.
The law also permits compulsory licenses in order to ensure free competition, so as to prevent "abusive situations" as defined in the antitrust legislation. Such a situation would include a shortage of the good at a specific price, quantity or quality. Compulsory licenses under the law could also be issued in cases of national emergencies.
The bill has been approved by Congress and is expected to be published in the Official Gazette (Diário Oficial da União) soon. The law will become effective six months after official publication.
The bill is expected to be officially published at the end of January, 2006.