An International Guide to
Patent Case Management for Judges

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3.10 Criminal proceedings

The LPI criminalizes certain conducts, though it does not specify special rules for the processing of their criminal prosecution. The Code of Criminal Procedure (Código de Processo Penal)90 regulates criminal prosecution and the preliminary measures of search and seizure, in crimes against industrial property.

The crimes provided for in the LPI are crimes for which a complaint by the interested party is required for initiating criminal prosecution, except for the crime provided for in Article 191, for which the criminal prosecution is public (Article 199 of the LPI). These actions are processed by courts that, as a rule, are different from those that process civil claims and that are not necessarily specialized in industrial property crime, but exclusively in criminal matters as a whole. Criminal prosecutions do not depend on civil lawsuits.

The LPI provides that an allegation of nullity of the patent or registration on which the action is based may constitute a defense in criminal prosecution. The acquittal of the defendant, however, does not imply the nullity of the patent or registration, which can only be demanded by the competent action (Article 205 of the LPI).