3.1.4 Inventor and ownership
Articles 6–7 of the LPI govern patent ownership. The author of an invention or utility model is assured the right to obtain a patent that guarantees ownership, under the conditions established in the LPI (Article 6). If this rule is not complied with, the inventor may, alternatively, claim the grant of a patent through judicial proceedings (Article 49 of the LPI).
Under the law, a patent applicant is presumed to be entitled to obtain the patent unless proven otherwise (Article 6(1) of the LPI). This is a legal presumption, but it can be ruled out; administrative or judicial nullity can be determined (Articles 50(I) and 46 of the LPI, respectively).
A patent may be applied for under the author’s own name, by the author’s heirs or successors, by the assignee, or by the person to whom the ownership belongs according to the law or the employment or service agreement (Article 6(2) of the LPI). The inventor will be named and qualified and may request the nondisclosure of their name (Article 6(4) of the LPI).
Where an invention or utility model has been developed jointly by two or more persons, the patent may be applied for by all or any of them upon indication and qualification of the others, as a disclaimer of their rights (Article 6(3) of the LPI). If two or more authors have developed the same invention or utility model independently, the right to obtain the patent is guaranteed to the one who proves to have made the filing first, regardless of the dates of invention or creation (Article 7 of the LPI); this article establishes the first-to-file rule in Brazil.12 Withdrawing a previous patent filing that had not produced any effect gives priority to the immediately subsequent filing (Article 29(2) of the LPI).
According to Article 42 of the LPI, a patent entitles its holder the right to prevent third parties from producing, using, putting on sale or selling – or importing for these purposes – without the holder’s consent:
I – a product that is the object of the patent;
II – a process or product obtained directly through a patented process.
The patent holder is also granted the right to prevent third parties from contributing to the practice of these acts by others (Article 42(1) of the LPI). If the possessor or owner fails to prove, by specific judicial determination, that their product was obtained by a manufacturing process different from that protected by the patent, the process patent right will be deemed infringed (Article 42(2) of the LPI).
However, the patent holder may not prevent a third party from producing, using, putting on sale or selling – or importing for these purposes – in the following cases:
I – acts performed by unauthorized third parties, on a private and non-commercial basis, provided that they do not harm the economic interest of the patent holder;
II – acts performed by unauthorized third parties for experimental purposes, related to scientific or technological studies or research;
III – preparation of drugs according to a medical prescription for individual cases, conducted by a qualified professional, as well as the drug itself thus prepared;
IV – a product manufactured according to process or product patent that has been placed on the domestic market directly by the patent holder or with their consent;
V – third parties who, in the case of patents relating to a living matter, use the patented product, without economic purposes, as an initial source of variation or propagation to obtain other products; and
VI – third parties who, in the case of patents relating to a living matter, use, circulate, or market a patented product that has been lawfully introduced into the market by the patent holder or the license holder, provided that the patented product is not used to commercially multiply or propagate the living matter in question.
VII – acts committed by unauthorized third parties, related to the patent-protected invention, intended exclusively to produce information, data, and test results, aiming at obtaining a trade license in Brazil or any other country, for the exploitation and sale of the patent-protected product, after expiration of the time limits set forth in Article 40. (Article 43 of the LPI)
In addition to preventing the infringement of their patent, a patent holder also has the right to obtain compensation for the improper exploitation of the patented object (Article 44 of the LPI).