por Attilio Gorini
01 de junho de 2007
As part of its Economic Growth Package, the Brazilian government published Provisional Measure No. 352, on January 2, 2007, now converted in Law no 11,481, May 31st, 2007. The measure instituted programs to foster technological development of the semiconductor and digital TV equipment industries, and also regulates intellectual property protecting layout designs of integrated circuits.
The new measure finally aligns Brazilian legislation with the WTO’s International Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), and with the WIPO Treaty on Intellectual Property in Respect of Integrated Circuits.
The creator of the layout design, which must be original, may register it with the Brazilian Patent and Trademark Office (BPTO). When filing, the applicant may request nondisclosure for a period of no more than six months. If the application is withdrawn by the month before nondisclosure ends, it will have no effect.
After filing, the BPTO shall conduct only a formal examination and may publish office actions. When this phase has ended, the application shall be approved. There are no provisions for administrative opposition.
The registration shall be valid for ten years, counting from the date of application or the first exploitation, whichever occurs first. Note that the petitioner must declare when he began using the layout design, and this must not exceed two years prior to applying.
Although the registration may appear merely declaratory, that is to say that it does not create rights, the PM establishes that protection depends upon registration. The conclusion is then that the application does in fact establish rights, and thus is essential for exercising the rights arising therefrom.
Interested parties may file for legal cancellation of the registration, but the PM does not specify the time period for this. Since this is sui generis protection, analogy may be applied in this absence of specificity, most notably the analogy with industrial design (ID) registrations under Industrial Property Law (IPL) No. 9,279/98). The IPL establishes that the court may cancel ID registrations, like those of an invention patent, during the period they are in effect. Applying this Law analogously to the case of layout designs, one may conclude that the period for legal cancellation would be ten years counting from the date application is filed.
The preceding statute of limitation is the same as in the Civil Code in cases where the law does not expressly state the period. However, another interpretation is possible: since granting is an administrative act by a federal autarchy, one may conclude that the period is five years from the date granted.
Only time will settle these and other controversial issues, but it is certain that registration of the layout designs of integrated circuits has come at the right time considering the technological advances needed to align Brazil with the world economy.